• White House Immigration Report Outlines Proposed Employment-Based Immigration Reforms
  • August 17, 2015
  • Law Firm: Fragomen Del Rey Bernsen Loewy LLP - New York Office
  • In a wide-ranging report issued Wednesday, the White House recommended an array of administrative improvements to the U.S. legal immigration system, including a number of reforms to employment-based programs and policies.

    The report follows the government’s December 2014 request for the public’s recommendations on improvements to the U.S. immigrant and nonimmigrant visa system, and numerous stakeholder engagements conducted by U.S. Citizenship and Immigration Services and other agencies over the last several months.

    Though the report contains many potentially promising proposals for employment-based reforms, it does not offer detailed information on implementation or projected timelines. Some of the recommendations are likely to require formal rulemaking, a process that typically takes many months, while others could be accomplished through process changes or agency guidance.

    Employment-Based Immigrant Visa Allocation

    Chief among the White House’s employment-based recommendations are improvements in allocation of the 140,000 employment-based (EB) green card numbers made available annually. Later this year, the State Department is to revise the way EB immigrant visa availability is reflected in its monthly Visa Bulletin and apportion more green card numbers in the first three quarters of the fiscal year. A plan to improve data-sharing between USCIS and the State Department is intended to further improve the allocation of EB immigrant visas.

    The report does not offer specifics, but suggests that Visa Bulletin revisions will help promote predictability in visa availability, guard against sudden retrogression of priority date cut-offs and “allow more individuals seeking [lawful permanent resident] status to work, change jobs, and accept promotions.”

    Enhanced Portability and Job Flexibility Provisions for Foreign Workers Affected by Visa Backlogs

    The White House confirmed a forthcoming proposed regulation that would afford additional job flexibility and portability to nonimmigrant workers affected by lengthy immigrant visa backlogs.

    The regulation would provide more guidance on the circumstances under which foreign workers in the green card process could change jobs while waiting for an immigrant visa to become available. Additionally, the regulation would allow foreign workers whose sponsoring employer no longer exists or withdrew its previously approved petition to remain eligible to apply for adjustment of status, so long as their anchoring Form I-140 immigrant worker petition was approved more than one year ago.

    Further guidance on the H-1B program is also expected in the proposed regulation. A particularly welcome proposal is the creation of a grace period for workers who have been terminated or whose status has expired to obtain other employment without losing their status. Agency guidance on exemptions from the H-1B cap is also expected, and is intended to “ensure that those contributing to U.S. research and education of Americans” may remain in the United States.

    The EB-5 Immigrant Investor Program

    Consistent with plans announced earlier this year by the Department of Homeland Security (DHS), the White House recommends increased scrutiny of the EB-5 Regional Center program, including requiring Regional Center principals to make disclosures of conflicts of interests and obligating program participants to undergo enhanced background checks. The agency aims to make continued improvements in the adjudication of EB-5 petitions and applications.

    The State Department (DOS) is expected to amend its policies to clarify that prospective foreign investors are eligible for B visitor visas to review potential investments in the United States.

    Modernization of the PERM Program

    Echoing statements made earlier this year by Department of Labor (DOL) officials, the report addresses a forthcoming proposed regulation that will seek improvements to the PERM labor certification program, including updated recruitment requirements to reflect current business practices and a process to permit employers to correct minor errors in PERM applications. DOL is expected to continue to streamline its adjudication of PERM applications, an effort that has begun to yield improved processing times for audited cases, according to the latest official statistics.

    Known Employer Pilot Program


    USCIS plans to advance a pilot program - first announced in January of this year - to allow employers to establish in advance that they meet certain corporate requirements before they submit immigration petitions. According to the report, employers would have the option to petition for Known Employer status, which would likely entail vetting by USCIS, CBP and ICE. The report suggests that employers admitted to the program would submit corporate documentation and other evidence to an online library, which agency officers would use to adjudicate the employer's petitions. At the close of the yearlong pilot, DHS would issue an assessment of its effectiveness and a plan for further implementation.

    Permanent Residence Sponsorship for F-1 Students and Other Nonimmigrants


    DHS and DOS are expected to issue further guidance to clarify when a U.S. employer may sponsor an F-1 foreign student for permanent residence without jeopardizing the student’s nonimmigrant status. Guidance is also expected to identify other nonimmigrant categories whose beneficiaries are permitted to have “dual intent” - i.e., to meet the requirement to intend to remain in the United States temporarily and at the same time pursue permanent residence.

    Exchange Visitor Program

    The report confirms the State Department’s ongoing efforts to enhance safeguards in the J-1 exchange visitor program. Over the last several years, DOS has taken several measures, including regulatory action, to ensure that exchange program sponsors and private entities hosting J-1 nonimmigrants meet their regulatory obligations. A forthcoming proposed rule would further these goals. The report places special focus on the Summer Work Travel Program and promises further protections against work-related abuses against participants. It also suggests that additional mechanisms will be put in place to enable J-1 exchange visitors to raise concerns about potential program violations.

    Entry of Foreign Nationals


    The report recommends several proposals to streamline the entry of foreign visitors, workers and immigrants at U.S. ports. This includes automating passport and customs controls at select U.S. airports, expanding the Global Entry trusted traveler program and implementing pre-flight inspection at more foreign airports. The White House recommends that the State Department consider waiving consular interviews for a broader group of low-risk visa applicants.

    Additional Work Authorization for Certain Extension Applicants

    According to the report, USCIS is in the final stages of preparing a regulation that will extend the 240-day extension of employment authorization to nonimmigrant high-skilled specialty occupation professionals from Chile and Singapore (H-1B1) and from Australia (E-3) provided that a timely-filed extension was filed their behalf. This benefit is currently available to foreign workers extending H-1B or L-1 status, among other categories of nonimmigrants.

    Increased Information Access for Employer-Sponsored Foreign Nationals

    The White House recommends that foreign beneficiaries of H-1B petitions, PERM labor certifications and other employer-sponsored filings be given direct access to information on the status of their cases. This includes plans to notify foreign beneficiaries of the outcome of a labor certification filed on their behalf and to permit H-1B beneficiaries to obtain direct confirmation of petition filing and case status information.

    Employer Obligations to Support the Training of U.S. STEM Workers

    The White House has called upon the National Science Foundation and other agencies to work with USCIS to identify ways in which employers sponsoring high-skilled foreign workers can enhance STEM education and training for U.S. workers. The report suggests that the Administration could impose additional obligations on employment-based petitioners as a result. Under current law, employers are obligated to pay an education and training fee with initial H-1B petitions and first H-1B extensions, which funds Department of Labor programs for the development of U.S. workers.

    What the White House Report Means for Employers


    The White House report addresses several highly anticipated reforms - including improvements in employment-based immigrant visa allocation and a grace period for H-1B nonimmigrants between jobs - but the specific impact of these and other initiatives on employers and foreign nationals will not be known fully until the details of their implementation are released by the U.S. immigration agencies. Given the lengthy process for rulemaking and issuance of agency guidance, it remains to be seen whether the White House’s plan can be achieved in the 18 months remaining in the Obama Administration.