President Barack Obama’s big speech last night on immigration policy included several nuggets of interest to the research community—including moves that will make it easier for foreign students studying at U.S. universities to gain a temporary work permit, and for Chinese and Indian researchers who already have U.S. work permits to change jobs and apply for permanent residency.
But to the disappointment of the high-tech industry, Obama stopped short of using his executive power to address what they say is a chronic shortage of permits for highly-skilled foreign workers. That step, White House officials say, would require Congress to pass legislation that has been bottled up in the U.S. House of Representatives.
In the meantime, Obama followed through on a threat to take unilateral administrative steps because Congress hasn’t acted. The big news was a series of policy changes to enable some 4 million undocumented immigrants to avoid deportation, at least for the remaining 2 years of the administration. But Obama also announced policies, to be finalized over the next 4 months, which he said will “make it easier and faster for high-skilled immigrants, graduates, and entrepreneurs to stay and contribute to our economy, as so many business leaders have proposed.”
“Are we a nation that educates the world’s best and brightest in our universities, only to send them home to create businesses in countries that compete against us?” he added. “Or are we a nation that encourages them to stay and create jobs here, create businesses here, create industries right here in America?”
The United States wants them to stay here, Obama emphasized in announcing his plans.
One change would expand an existing program that enables foreign students studying science, technology, engineering, and mathematics (STEM) at U.S. universities to work full time while on a student visa (such visas typically bar employment). Some 120,000 students, including at least 25,000 in STEM fields, participated in the Optional Practical Training (OPT) program in 2013, according to government statistics. OPT currently allows students to work full time for up to 29 months, with approval from their institution.
Now, immigration officials will develop new rules “to expand the degree programs eligible for OPT and extend the time period and use of OPT for foreign STEM students and graduates,” according to a 20 November memo from Homeland Security Secretary Jeh Charles Johnson. But in a nod to controversy surrounding the OPT program, including criticism that universities weren’t adequately monitoring adherence to the rules, and that it takes jobs away from native-born workers, Johnson also ordered officials to “improve” oversight rules and “safeguard the interests of U.S. workers in related fields.”
Johnson’s memo also sets out plans to make it easier for multinational companies to move workers from foreign facilities to U.S. operations, and simpler for immigrants who already have U.S. work permits to shift to “same or similar” jobs. “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,” Johnson wrote. The Obama administration also wants to make it easier for spouses of workers holding certain types of H-1B visas—which are common in the high-tech industry—to gain the ability to work.
Researchers from India and China, who face an especially long wait for visas as a result of current rules, could see particular benefits from the new policies, says immigration attorney Mark Harrington of the Harrington Law Firm in Houston, Texas. One visa issuance change, for example, should make it easier for workers to file a form—called an I-485—that is needed to transition from a temporary work permit to a permanent residency permit, or green card. Now, he says, Indian and Chinese workers may have to wait years to file that paperwork because of backlogs in the system. Under new rules, they’ll be able to file the I-485 immediately after approval of their National Interest Waiver (NIW) petition, even though, because of the backlog, they may not get the visa for years. And filing an I-485 has major benefits, he adds: You can get a work authorization, so you’re no longer bound to a particular employer. Your spouse can get one, too. And traveling gets easier, since you no longer have to renew your visa at the embassy.
Less concrete but also promising for foreign researchers is a move to make it easier for “certain non-citizens with advanced degrees or exceptional ability” to receive NIWs. The waiver allows holders "to seek green cards without employer sponsorship if their admission is in the national interest,” according to Johnson’s memo. “This waiver is underutilized and there is limited guidance with respect to its invocation,” Johnson wrote. He asked the agency to clarify the rules “with the aim of promoting its greater use for the benefit of the U.S economy.”
The administration also would offer “parole status” to immigrants who haven’t yet qualified for a national interest waiver, allowing “inventors, researchers, and founders of start-up enterprises … who have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation” to temporarily start work in the United States. To qualify, applicants would have to meet certain “income and resource thresholds,” which have not yet been set.
Harrington says that under the Obama administration, immigration cases involving efforts to obtain NIWs have been “brutal”; they should get easier under these new guidelines.
Such moves are drawing positive, albeit muted, reviews from high-tech industries that recruit high-skilled foreign workers. They had hoped Obama would do more. Some labor unions, scholars and professional groups, meanwhile, remain worried that that opening any gates to more foreign high-skilled workers will depress wages and reduce job possibilities for native-born scientists and engineers.
*Clarification, 25 November, 11:45 a.m.: The paragraph dealing with I-485 requests has been revised to clarify their relationship to the National Interest Waiver process.