Last week, as part of the President’s November 2014 Executive Actions, the White House issued a report outlining   interagency recommendations to fix our broken immigration system, including many of the issues surrounding employment-based immigration.

The recommendations in this report are based on an assessment of options to streamline and modernize our legal immigration system (conducted by Department of State and Department of Homeland Security). Assessments were based on information received from the Request for Information that was published in the Federal Register in December 2014. The overall goal here was to get as much input as possible from different interest groups/stakeholders: visa applicants, employers, the general public, labor groups, etc.

Regarding employment-based immigration, the recommendations made should (1) help ensure all immigrant visas authorized by Congress are used, (2) better account for visa availability for those wanting to adjust their status to lawful permanent resident while remaining in the U.S., and (3) provide for more job flexibility/portability for those non-immigrant workers waiting for priority dates to become current.

Some recommendations concerning our employment-based immigration system include: 

• “Update the monthly Visa Bulletin. Later this year, State, in consultation with DHS, will revise the monthly Visa Bulletin to better estimate immigrant visa availability for prospective applicants, providing needed predictability to nonimmigrant workers seeking permanent residency. The revisions will help ensure that the maximum number of available visas is issued every year, while also minimizing the potential for visa retrogression. These changes will further allow more individuals seeking LPR status to work, change jobs, and accept promotions. By increasing efficiency in visa issuance, individuals and their families who are already on the path to becoming LPRs will have increased security that they can stay in the United States, set down roots, and more confidently seek out opportunities to build lives in our country.”
• “Refine monthly allocation of visas. State will increase monthly visa allocation totals during the first three quarters of the fiscal year to the degree permitted by law in order to ensure that fewer numbers are left for the final quarter, thereby ensuring that visa numbers issued are as closely aligned with statutory mandates as possible.”
• “Improve numerically controlled immigrant visa appointments. State’s National Visa Center will alter how numerically controlled immigrant visa appointments are scheduled for the last month of the fiscal year (September) to provide sufficient time to evaluate whether there may be potentially unused numbers. This change will allow for the scheduling of additional cases when necessary in order to maximize the numbers of visas used, consistent with the annual limits.”
• “Clarify and expand protections for employment-based immigrants and nonimmigrants. DHS intends to publish a regulation clarifying and expanding on the protections afforded employment-based immigrants and nonimmigrants under the American Competitiveness in the Twenty-First Century Act of 2000 (“AC-21”), which was meant to increase job flexibility for individuals who were coming to the United States to perform specialty occupation services (H-1B) and those on the pathway to permanent residency. This regulation will:
  • Increase the ability of workers waiting for a green card to change jobs or receive promotions by clarifying when individuals may change jobs or employers because such employment is “same or similar” to the job that was the original basis for permanent residency;
  • Further increase job flexibility by enabling individuals whose employment-sponsored immigrant visa petitions have been approved for more than one year to retain eligibility for LPR status despite the petitioning employer closing its business or seeking to withdraw the approved petition;
  • Provide increased guidance on job flexibility provisions for H-1B workers seeking other H- 1B employment, including changing jobs or employers;
  • Extend grace periods for certain nonimmigrant workers whose period of authorized stay has expired, including because their jobs have been terminated, to better allow them to obtain other employment without losing their nonimmigrant status;
  • Clarify when H-1B nonimmigrants may begin working without required licensure;
  • Provide increased guidance on the maximum period of admission for H-1B nonimmigrants, including for those who are on the path to LPR status, and enable H-1B nonimmigrants to recapture time spent outside of the United States;
  • Clarify which H-1B nonimmigrants are exempt from the statutory cap to ensure that those nonimmigrants who are contributing to U.S. research and the education of Americans may remain in the United States; and
  •  Protect H-1B nonimmigrants who suffered retaliatory actions because they reported labor violations committed by their employer.”

Additional Improvements

Some of the additional improvements to streamline our legal immigration systems include implementing these recommendations:

• “Modernize and streamline PERM adjudications. DOL intends to publish a new regulation to better align the PERM program with the objectives of the immigration system and the needs of workers and employers, including updating recruitment methods, addressing the correction of minor errors in applications, and disclosing application outcome to immigrant workers. DOL also continues to implement a plan to streamline PERM adjudications processes, including audit review, in order to reduce the pending audit caseload and allow for faster adjudication of audit case processing.”
• “Provide greater clarity and certainty to H-1B beneficiaries and their employers. In order to enhance the H-1B program, DHS will:
  • Assess whether there is a mechanism for H-1B workersto confirm submission of a petition filed on their behalf as well as the ability to request status updates on the filing through existing USCIS customer service channels. 36 AILA Doc. No. 15071508. (Posted 07/15/15)
  • Amplify and engage in robust outreach to ensure that H-1B petitioners and beneficiaries understand how to demonstrate an employer-employee relationship in situations where the beneficiary owns or co-owns the petitioning company.”
• “Enhance information to encourage reasonable deference to prior adjudications of H-1B and L-1 petitions. DHS will modify form instructions for H-1B and L-1 extensions in order to ensure that petitioners provide documentation of previous adjudications and adjudicators have as much documentation as possible when making determinations.”
• “Strengthen employer support for U.S.-born workers in STEM fields. Many high-skilled workers are filling gaps for employers where there are not currently enough qualified U.S.-born workers in STEM fields. The National Science Foundation (NSF) and other relevant agencies will work with USCIS in an effort to help strengthen the ability of employers sponsoring high-skilled worker visas to simultaneously support education and training to grow the next generation of American workers in STEM careers.”
• “Clarify which nonimmigrant classifications permit for dual intent. Petitioners require further guidance regarding when nonimmigrants may take steps toward becoming an LPR without jeopardizing their current status.
  • DHS will determine the appropriate mechanisms to clarify which nonimmigrants are permitted under the law to maintain nonimmigrant status, while taking steps toward obtaining LPR status. With respect to F-1 students in particular, DHS will seek to clarify the circumstances under which U.S. employers may directly sponsor such students for LPR status.
  • State will further clarify in the Foreign Affairs Manual that as long as an F-1 student visa applicant’s intention at the time of visa application is to depart at the conclusion of his or her studies, the likelihood that a student may apply to change or adjust status in the future is not itself a basis for a denial of a visa, and emphasize existing guidance on this issue to the field.
  • DHS and State will also conduct further outreach to higher education and student interest groups to provide information about these options.”