CWS 3.0: December 3, 2014

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Executive order on immigration could be good news for CW managers

President Obama’s immigration plans won’t raise the 85,000-person annual cap on H-1B visas, and they likely won’t do much else to increase availability of H-1Bs. However, there could be more positive news for contingent workforce managers and others who rely on the visa program for highly skilled temporary foreign workers such as IT professionals. But the news might not be as good for some staffing suppliers.

“The quick take on it is, we don’t know all the details, as most of what has been proposed needs to go through a formal rule-making [process] or require the issuance of detailed policy guidance” says Mark Roberts, CEO of the TechServe Alliance. In any event, it is not likely to significantly increase the availability of H-1Bs available to the staffing industry, Roberts says. “While there would appear to be some proposed improvements on the ‘green card’ front, those actions won’t be of immediate help to the staffing industry.”

Prior to the announcement, Roberts said some thought the proposals might allow “recapture” of previous H-1B visas that were issued but never used. That could have meaningfully increased the number of H-1B workers available, but it is not currently on the table.

Ed Lenz, senior counsel of the American Staffing Association, says it’s not possible to assess precisely what the impact of the immigration announcements will be on staffing firms at this time. “My guess is the impact will be relatively modest,” Lenz says. “A lot of our members utilize H-1B workers, but nothing in the announcement is expected to expand the number of H-1B visas.”

He also notes none of the actions are expected to take place until six months from now. And they could later be undone by a new president.

Portions of the proposal call for making it easier for some workers to get work permission without employer sponsorship and make it less difficult for H-1B visa holders who applied for a green card to change jobs. Under the current rules, workers waiting for a green card may be reluctant to switch companies or even accept promotions.

Attorney Michael Hammond of the Hammond Law Group says some staffing client companies use staffing firms to avoid dealing with the H-1B immigration process. And the proposed change may prompt staffing buyers to hire the H-1B workers directly because they won’t have to go through those steps.

In addition, staffing firms paying to bring in H-1B visa holders will have to weigh cost of the immigration programs and profitability given the risk an H-1B employee could more easily leave for another firm after a relatively short period.

“From the individual workers’ perspective, this is like the Super Bowl victory,” Hammond says. It’s also good for companies seeking access to talent — but not so good for staffing companies that make money from assigning out workers.

President Obama delivered his immigration reform speech on Nov. 20. The president is moving forward with executive actions after Congress failed to pass immigration reform.

Immigration of highly skilled professionals hardly came up — the speech focused mostly on undocumented workers. However, a memorandum by the secretary of Homeland Security issued the same day carried more information but still lacked particulars.

The memorandum calls for US Customs and Immigration Services to:

  • Change regulations to ensure approved, long-standing petitions for green cards remain valid in certain cases where workers seek to change jobs or employers. The memorandum noted extremely long waits for green cards because of caps set by Congress in 1990. The memorandum also called for USCIS to work with the US Department of State to ensure all green cards authorized by Congress are issued to eligible individuals.
  • Expand use of “optional practical training” status for F-1 student visa holders. These visas currently allow foreign students graduating from US universities to stay in the US for 12 months past graduation to work in an area relevant to their field of study. The timeframe is 29 months for students in science, technology, engineering and math (STEM) fields. The memorandum calls for expanding the degree programs eligible for optional practical training as well as expanding the time period for STEM students to use it.
  • Issue guidance or regulations to clarify the standard by which “National Interest Waiver” permits are granted. A national interest waiver permits non-citizens with advanced degrees or exceptional abilities to seek green cards without employer sponsorship. “USCIS should propose a program that will permit DHS to grant parole 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 US investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research,” according to the memorandum.
  • Issue a policy memorandum that provides guidance on the meaning of “specialized knowledge” in the L-1B visa program. L-1B visas are for “intracompany transferees” that allow companies to transfer employees who are managerial or executives or who have “specialized knowledge” of the company products and processes to the US from foreign operations.
  • Bring clarity to the process of changing jobs for temporary visa holders seeking green cards. Current law allows such workers to change jobs without jeopardizing their ability to seek lawful permanent residence but only if the new job is in a “same or similar” occupational classification as the worker’s original job, according to the memorandum. There is uncertainty surrounding “same or similar” job that prevents many workers from changing employers, seeing new opportunities or accepting promotions. “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. By removing unnecessary restrictions to natural career progression, workers will have increased flexibility and stability, which would also ensure a more level playing field for US workers.”
  • Also mentioned is a proposed rule to extend work authorization to spouses of H-1B visa holders who have been approved to receive lawful permanent resident status based on employer sponsorship. This was already introduced.