IMMIGRATION ROUNDUP: OBAMA'S TO-DO LIST

With so much focus on who will be our next president, we might have forgotten that Barack Obama still occupies the White House. And he still has a few immigration loose ends to tie up.

The U.S. Supreme Court’s failure to reach a decision in the case over the president’s deferred action programs has put those programs to bed for the time being. The programs would have granted deportation relief and work authorization to about 5 million undocumented immigrants.

But there was so much more to the November 2014 immigration executive action than relief for the undocumented. And two years later, there’s still a lot to be done.

A big one: the Labor Department’s PERM program. In most cases, it’s the first step employers have to go through to sponsor foreign workers for green cards.

Employers and immigration attorneys have complained for years that the program is out-of-date with modern business practices, especially when it comes to the steps employers must take to recruit U.S. workers before they can hire a foreign worker. There’s a lot of focus on newspaper want ads, which are on their way out in the age of digital job searches.

There’s a proposal to modernize the program, but it’s been under view by the White House Office of Management and Budget since early March.

Also on the OMB’s to-do list: the final version of a hodgepodge rule on skilled immigrant workers. A lot of the December proposal focused on relief for workers being sponsored for green cards who are waiting for their visas to become available—which can take years or even decades.

Late to the game is a proposal to bring in immigrant entrepreneurs through what’s called the parole authority, which allows the president to allow immigrants entry outside of the normal channels, either for humanitarian reasons  or because they would create a significant public benefit.

There is no visa for immigrants who start businesses in the U.S.

The White House also is planning guidance on how immigrant entrepreneurs can self-petition for a green card, allowing them to stay permanently and become U.S. citizens. This likely would be done through the national interest waiver process, which lets immigrants seek employment-based green cards without an employer sponsor and without PERM.

 Make no mistake, a lot of things have been accomplished. Here are just some them: 

  • Regulations granting work permits to the spouses of certain H-1B skilled foreign workers
  • An update to the Visa Bulletin to make sure all available visas are issued to eligible individuals
  • Guidance on what counts as the “same or similar” position for immigrant workers who want to change jobs while waiting for their visas to become available
  • An extension of optional practical training for foreign students with degrees in science, technology, engineering and mathematics, allowing them to work longer in the U.S. post-graduation
  • Updated policy guidance on L-1B intracompany transferee visas for workers with “specialized knowledge”
  • An updated list of crimes (including forced labor and fraud in foreign labor contracting) whose victims may be entitled to obtain a U visa
  • DOL certifications that provide the foundation for human trafficking victims to get T visas
  • Formation of an interagency working group made up of the departments of Labor, Homeland Security and Justice, the Equal Employment Opportunity Commission and the National Labor Relations Board, resulting in a modified memorandum of understanding to hold off on immigration enforcement actions if the other agencies are investigating potential labor and employment violations

Bloomberg Law®  helps labor and employment law practitioners provide rapid, accurate and complete advice to clients by bringing together trusted, market-leading Bloomberg BNA content like Daily Labor Report® and treatises like Covenants Not to Compete: A State-by-State Survey and The Developing Labor Law , with a fully integrated, innovative legal research platform.  Click here to request a free trial.