As a Miami immigration attorney,  I would like to call attention to the fact that in addition to preventing the deportations of eligible parents of United States Citizen children, the President also signed a memorandum to explore ways to upgrade parts of the immigration system to meet the needs of an increasingly global economy.

In a separate memo, Homeland Security Secretary Jeh Johnson outlined how the policy changes at U.S. Citizenship and Immigration Services (USCIS) will support U.S. economic growth. These new policies and regulations are meant to benefit both U.S. businesses and workers by continuing to grow our economy and create jobs.

Johnson’s memo to USCIS covers the following changes:

1. Modernizing the Employment-Based Immigrant Visa System

Our employment-based immigration system is afflicted with extremely long waits for immigrant visas, or “green cards,” due to relatively low green card numerical limits established by Congress 24 years ago in 1990.

The resulting backlogs for green cards prevent U.S. employers from attracting and retaining highly skilled workers critical to their businesses. U.S. businesses have historically relied on temporary visas-such as H-lB,1L-lB,2 or 0-13 visas-to retain individuals with needed skills as they work their way through these backlogs. But as the backlogs for green cards grow longer, it is increasingly the case that temporary visas fail to fill the gap.

As a result, the worker’s temporary status expires and his or her departure is required. This makes little sense, particularly because the green card petition process for certain categories requires the employer to test the labor market and show the unavailability of other U.S. workers in that position.

To correct this problem, the USCIS has been directed to take several steps to modernize and improve the immigrant visa process. Specifically, USCIS has been directed to consider amending its regulations to ensure that approved, long-standing visa petitions remain valid in certain cases where they seek to change jobs or employers.

B. Reforming “Optional Practical Training” for Foreign Students and Graduates from U.S. Universities

Under long-standing regulations, foreign nationals studying in the United States on non-immigrant F-1 student visas may request twelve additional months of F-1 visa status for “optional practical training” (OPT), which allows them to extend their time in the United States for temporary employment in the relevant field of study. OPT, which may occur before or after graduation, must be approved by the educational institution.

In turn, foreign students put into practice the skills and education they gain at U.S. universities to benefit the U.S. economy. By regulations adopted in 2007, students in science, technology, engineering, and mathematics (STEM) fields are eligible for an additional 17 months of OPT, for a total of 29 months. This extension has the added benefit of helping America keep many of its most talented STEM graduates from departing the country and taking their skills overseas.

Johnson directed the Immigration and Customs Enforcement (ICE) and USCIS develop regulations for notice and comment to expand the degree programs eligible for OPT and extend the time period and use of OPT for foreign STEM students and graduates, consistent with law.

C. Promoting Research and Development in the United States

To enhance opportunities for foreign inventors, researchers, and founders of start-up enterprises wishing to conduct research and development and create jobs in the United States, the USCIS has been directed to implement two administrative improvements to our employment-based immigration system:

First, the “national interest waiver” provided in section 203(b)(2)(B) of the Immigration and Nationality Act (INA) permits certain non-citizens with advanced degrees or exceptional ability to seek green cards without employer sponsorship if their admission is in the national interest. The USCIS  has been directed to issue guidance or regulations to clarify the standard by which a national interest waiver can be granted, with the aim of promoting its greater use for the benefit of the U.S economy.

Second, pursuant to the “significant public benefit” parole authority under section 212(d)(5) ofthe INA,6 USCIS should propose a program that will permit DHS to grant parole status, on a case-by-case basis, to inventors, researchers, and founders of start-up enterprises who may not yet qualify for a national interest waiver, but who have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cuttingedge research. Parole in this type of circumstance would allow these individuals to temporarily pursue research and development of promising new ideas and businesses in the United States, rather than abroad. As a Miami immigration attorney, I am particularly interested in this new development, as I believe it encourages foreign talent and growth in much needed sectors within the U.S. economy.

 D. Bringing Greater Consistency to the L-lB Visa Program

The L-IB visa program for “intracompany transferees” is critically important to multinational companies. The program allows such companies to transfer employees who are managerial or executives, or who have “specialized knowledge” of the company’s products or processes to the United States from foreign operations. It is thus an essential tool for managing a global workforce as companies choose where to establish new or expanded operations, research centers, or product lines, all of which stand to benefit the U.S. economy. To date, however, vague guidance and inconsistent interpretation of the term “specialized knowledge” in adjudicating L-1B visa petitions has created uncertainty for these companies.

To correct this problem, Johnson directed the USCIS to issue a policy memorandum that provides clear, consolidated guidance on the meaning of”specialized knowledge.”

E. Increasing Worker Portability

Currently, uncertainty within the employment-based visa system creates unnecessary hardships for many foreign workers who have filed for adjustment of status but are unable to become permanent residents due to a lack of immigrant visas. Current law allows such workers to change jobs without jeopardizing their ability to seek lawful permanent residence, but only ifthe new job is in a “same or a similar” occupational classification as their old job. Unfortunately, there is uncertainty surrounding what constitutes a “same or similar” job, thus preventing many workers from changing employers, seeking new job opportunities, or even accepting promotions for fear that such action might void their currently approved immigrant visa petitions.

To help eliminate this uncertainty, the USCIS was directed to issue a policy memorandum that provides additional agency guidance, bringing needed clarity to employees and their employers with respect to the types ofjob changes that constitute a “same or similar” job under current law. This guidance should make clear that a worker can, for example, accept a promotion to a supervisory position or otherwise transition to related jobs within his or her field of endeavor. By removing unnecessary restrictions to natural career progression, workers will have increased flexibility and stability, which would also ensure a more level playing field for U.S. workers.

As a Miami immigration attorney, I feel strongly that these administrative changes are critical to bringing the U.S. one step closer to competing with other countries for new talent and investments.  The Kauffman Foundation has estimated that a startup visa for entrepreneurs could create at least 1.6 million U.S. jobs in the next 10 years.   Such legislation is one of the many tasks facing Congress. But in the meantime, executive action gives entrepreneurs and others more of a chance to bring their skills to the U.S.

If you think would like more information on President Obama’s recent execution action on immigration, please contact Miami immigration attorney Michael G. Murray, Esq. at (305)895-2500 or visit our website at www. 

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