The Other Face of Immigration

June 26, 2014

On Thursday, November 20, President Obama announced that he would take executive action to modernize and streamline the visa system in an effort to integrate immigrants and refugees into the fabric of our society. Since then, much public attention has focused on the implications of this initiative for illegal immigrants brought to this country as children (the “Dreamers”) and on the parents who are here illegally, but who have minor children who are U.S. citizens.

However, that is not the whole story of what these immigration changes may mean. These proposals may have significant implications for tech companies that, according to a recent report of the Partnership for a New American Economy, have faced challenges for years  in finding the workers they need with high-level training in science, technology, engineering and math. Details are still somewhat sparse but may begin to emerge in early 2015.

Seven Changes STEM Employers Should Look for in 2015

Expansion of Optional Practical Training .  By 2020, the U.S. economy is expected to create 120,000 new jobs requiring a bachelor’s degree in computer science each year. Today, our higher education system graduates only 51,000 computer science graduates annually.  Many argue that it only exacerbates the problem that nearly half of STEM graduate degrees from this country’s research-driven universities are awarded to foreign-born students on temporary visas who have no clear path to remain in this country after graduation.

The OPT program is a long-standing attempt to address this problem. A student who is studying in the United States on an F-1 visa may now qualify for 12 months of OPT to work for an employer in a field directly related to his field of study.  An F-1 student may also currently qualify for an additional 17-month OPT extension for a total of 29 months if he or she:

  • receives a degree in a STEM field that is included on a designated list,
  • works for an employer that uses E-Verify, and
  • possesses OPT based on a STEM degree.

The Department of Homeland Security has directed Immigration and Customs Enforcement and the U.S. Citizenship and Immigration Services to propose changes in four areas to:

  • expand the fields of study eligible for STEM extensions,
  • extend OPT time for STEM graduates,
  • strengthen relationships between schools and students during the OPT period to ensure that OPT truly furthers a student’s course of study and
  • ensure that OPT employment is consistent with U.S. Labor market protections and thus safeguards the interests of U.S. workers.

OPT extensions are important to  foreign science students during gap years between undergraduate study and graduate school and for graduate students still working on their dissertation research when they are no longer taking classes. This may affect as many as 72,500 graduates per year.  An expansion in the fields eligible for OPT extensions might also be useful to tech employers, but the issue is not without controversy.

OPT extensions do not offer a direct pathway from earning a degree to permanent residency. If F-1 visa holders want to work beyond their OPT period, their employers must compete for H-1B visas for highly specialized workers. If a foreign student’s employer is able to obtain an H-1B visa and then sponsors a green card application, the wait time for permanent residency can be more than 10 years due to per-country limits, a problem particularly for Indian and Chinese nationals who make up two of the largest foreign student populations.

Finally there are currently no minimum wage or salary requirements for foreign student graduates under the OPT program.  This puts students at risk of exploitation and is at the root of much of the opposition by organized labor.

On the day after the President’s announcement, a federal judge decided that the Washington Alliance of Technology Workers, an organization affiliated with the Communication Workers of America, could proceed with a lawsuit challenging the federal government’s right to extend by executive action the authorization for foreign students to work in the United States under the OPT program.

These changes will require issuance of regulations, which takes time, but the Notice of Proposed Rule is expected to be published in June 2015. Interested employers should prepare for the comment period.

Clarification on National Interest Waivers.  The “national interest waiver” provided in section 203(b)(2)(B) of the Immigration and Nationality Act 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. DHS has determined that the waiver is underutilized and that there is limited guidance with respect to its use, omissions which it is undertaking to address. DHS will clarify the standard by which the waivers may be granted to foreign inventors, researchers and founders of start-up enterprises, but the timeframe for this guidance is uncertain.

Parole Status for Foreign Entrepreneurs.  DHS has been directed to propose a new program to grant 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 United States investor funding or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting edge research.

This status is intended to allow these individuals to temporarily pursue research and development of promising new ideas and businesses in the United States, rather than abroad. No publicly available timeframe has been set for the rollout of this program.

Employment Authorization for Certain H-4 Spouses.  In May 2014, DHS issued a proposed regulation that would grant employment authorization to certain H-4 spouses of H-1B nonimmigrants who are in the process of seeking lawful permanent resident status through their employment. Final regulations are expected in January 2015.

Clarification of the Meaning of “Specialized Knowledge”.  Under the L-1B Program. The program allows international companies to transfer employees who have specialized knowledge of the company’s products or processes from foreign operations to the U.S. However, the lack of guidance about what constitutes “specialized knowledge” has led to inconsistent decisions and uncertainty. USCIS has been directed by the Secretary of DHS to produce a policy memorandum clarifying the issue. As before, however, the timeframe is uncertain.

Clarification of the Meaning of “Same or Similar” Occupational Classification.  Currently, workers who have only employment-based visas may change jobs without jeopardizing their ability to seek lawful permanent residence, but only if the new job is in a “same or a similar” occupational classification as the old one. The meaning of the phrase is similarly shrouded in uncertainty. USCIS has also been directed to issue a clarifying memorandum at a date uncertain.

Changes to Make Optimal Use of Available Visas.  One of the tech industry’s top policy priorities is increasing the number of H1-B visas available for high-skilled workers, and the industry has been joined by state governments in the past several years. Rick Snyder, governor of Michigan, has proposed rebuilding Detroit by inviting 50,000 workers over the next five years using a visa program for people with advanced degrees or exceptional abilities in the sciences, arts or business.

A similar program proposed for Baltimore in 2002 linked initiatives to attract foreign students to the skilled workforce of the future. Economic initiatives like START-UP NY, which rolled out in January 2014, specifically target high technology businesses.

But the program is capped at 65,000 workers, a limit set 24 years ago, and only Congress can raise the cap. The Secretary of Homeland Security’s directive therefore focuses on modernizing the visa system to make optimal use of the numbers of visas available by law.

More specifically, he has directed USCIS to continue and enhance its work with the Department of State to ensure that all immigrant visas authorized by Congress are issued to eligible individuals when there is sufficient demand for such visas. Secondly, he has asked that USCIS to work with the Department of State to improve the system for determining when immigrant visas are available to applicants during the fiscal year. Third, he has directed USCIS to consider amending its regulations to ensure that approved, long-standing visa petitions remain valid in certain cases where workers seek to change jobs or employers.

No timeframe is available for these modifications, and much attention to the issue of H-1B visas has shifted to Congress and the potential for comprehensive immigration reform.

What about American Workers?

This is the turn the immigration debate always takes at this point.  Are foreign workers taking jobs away from native born workers?

This is an argument that will play out in the political rather than the legal sphere. The Partnership for a New American Economy report argues that the reverse is true. Working with economic data from 2007-2008, it posits that the rejection of 178,000 H1-B visa applications in computer related fields in the lotteries for those two years cost U.S metropolitan areas as many as 231,224 new tech jobs that would have gone to U.S.-born workers. The report further argues that American workers without bachelor’s degrees were disproportionately hurt. Neither was the economic pain evenly shared across geography, with cities like New York and Dallas Fort Worth particularly affected.

The report’s logic is intriguing because it looks at highly skilled foreign workers as the creators of opportunity, not just opportunity consumers. It’s not a zero-sum game.

The disarray of our immigration system is widely acknowledged. The task of developing a rational, enforceable policy must consider the need to support and encourage the tech sector, the needs of workers simply trying to improve their lives and the potential of major American cities to function again as engines of the economy.

Although comprehensive immigration reform will depend on Congressional action, tech employers may have the opportunity to see some changes in the next few months that may reduce the burdens they face in finding employees with the high-level technical training and skills that they need.


Anne Wallace is a New York lawyer who writes extensively on legal and business issues. She also teaches law and business writing at the college and professional level. Anne graduated from Fordham Law School and Wellesley College.

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