Immigration Roundup: The 2014 Executive Action Comes to a Close

In November, I wrote about what the Obama administration still needed to do to implement all of the president’s 2014 executive actions on immigration.

At the time, there were three outliers: an overhaul of the permanent labor certification program, finalization of regulations on high-skilled foreign workers, and self-petitioning for immigrant entrepreneurs. 

Implementing two out of three ain’t bad. 

First off, those awaiting the PERM overhaul are out of luck: the Labor Department withdrew its draft regulations from review by the White House Office of Management and Budget Dec. 19.

The regulations were expected to modernize the program, which in most cases is the first step employers must go through to sponsor immigrant workers for green cards.

Employers and immigration attorneys have complained that the DOL’s labor market test is antiquated and doesn’t align with modern recruitment practices. 

That may not be the end of the PERM overhaul so much as an opportunity for the Trump administration to start from scratch. President-elect Donald Trump has called for greater employment of U.S. workers, so designing a labor market test that more effectively recruits them would serve that goal. 

The Department of Homeland Security’s high-skilled foreign worker regulations came out Nov. 17. For the most part, they address difficulties workers on temporary H-1B visas face while waiting for employment-based green cards to become available. In these cases, the workers already have been approved for the visas, but can wait years for them because of their limited number.

But the Republican-controlled 115th Congress is forging ahead with legislation that would allow lawmakers to invalidate blocks of regulations issued in the last 60 days of the prior Congress. The high-skilled foreign worker regulation falls into that category, and made the House Freedom Caucus’s cut list, released Dec. 14.

Immigrant entrepreneur self-petitioning may just earn the most likely to succeed distinction. 

In a precedential administrative decision issued two days after Christmas, U.S. Citizenship and Immigration Services uprooted the standard for national interest waivers.

Under the Immigration and Nationality Act, most immigrants seeking employment-based visas need an employer sponsor, which must go through the labor certification process. The national interest waiver allows certain immigrants to sponsor themselves for EB-2 visas and skip labor certification, if granting the visa would be in the national interest.

The USCIS’s Administrative Appeals Office said a 1998 standard for granting the waivers was too restrictive and confusing. Adopting a new standard, the office specifically mentioned immigrant entrepreneurs as beneficiaries, and a USCIS spokesman confirmed that the decision was the anticipated immigrant entrepreneur guidance.

Appearing in a precedential agency decision, the new national interest waiver standard has the force of law and must be applied in similar cases.

That’s going further than its companion, a proposed regulation to allow the DHS to use its parole authority to bring in immigrant entrepreneurs. Parole allows admission of immigrants outside the regular channels if it would serve the national interest or for humanitarian reasons.

Despite support from the tech industry, the proposal isn’t expected to be finalized before Trump takes office, and he isn’t expected to follow through.

We’ll soon see what the Trump administration will bring to immigration. Stay tuned.

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