Trending: Feds announce new restrictions on H-1B visas and plans to rescind ‘startup visa’ workaround

Photo via Shutterstock
Photo via Shutterstock

There were two clear winners in President Obama’s sweeping changes on immigration executive action last week: undocumented parents of U.S. citizens and green card holders and tech workers. The president finally put a stop to rhetoric and announced clear measures to bring the best and brightest people to the U.S. These measures will significantly benefit the technology industry and the business community.

Here’s why.

I am particularly excited about a new and creative provision included for startup founders.

For years, I’ve advocated for a “Startup Visa.” However, without Congressional action, a new visa category will not be created.

So Obama instead is a using an existing provision known as “parole” to allow startup founders to enter the U.S., if they can demonstrate they are inventors, researchers or entrepreneurs who’ve raised funding from U.S. investors or hold promise of sparking innovation and creating jobs. Applications will be decided on a case-by-case basis. Those applying for entrepreneurial parole must be prepared to demonstrate financial self-sufficiency. I hope in due course, when guidance is provided, that the standards are reasonable and practical.

President Obama
President Obama

Startup founders who are paroled into the country would be able to move on to a more permanent status using an existing visa category known as national interest waiver. In 2012, the administration allowed entrepreneurs to use this if they could prove job creation and revenue generation or attracting investment. However, there was not enough guidance provided for this and as a result, utilization was low. Now, under executive action, guidance is expected. And, while we do not yet have the details, I’m glad it is on the way.

Under the president’s executive action, the U.S. Citizenship and Immigration Service will enhance current options for foreign entrepreneurs. I’m hopeful this will result in an easing of regulations that often hinder entrepreneurs from coming to the U.S. Here are suggestions I have made in the past.

Employers and employees on temporary work visas will both be impacted by some small changes proposed by the administration. One change will allow those in a backlog to apply immediately for green cards, once their permanent employment immigrant petition has been approved. Currently those same applicants cannot apply until they are at the front of the line (or their priority date is current), a journey that, for some, can take more than 15 years. The benefit of being able to apply in advance is that workers can receive interim work authorization that would allow easier movement between employers.

The above procedural change will also result in reinterpretation of the rules and definitions that affect applications when workers are promoted or see other advancements in their careers.

Another important change will include work authorization for spouses of H1b workers with approved green card applications. Typically, high-skilled workers have high-skilled spouses. It is a waste of talent not to allow these high-skilled spouses to work. Currently, they are not eligible for work authorization, whereas spouses of L1 and E2 visa holders are.

These important changes will be particularly beneficial to the technology community. According to WashingtonStem.org, there are more than 23,000 unfilled STEM jobs that will grow to 45,000 by 2017. These measures will help address the problem to some extent.

Tahmina Watson
Tahmina Watson

The president’s executive action also addresses post-graduation experience known as ‘optional practical training’ or OPT, under which foreign students on F1visas may obtain job training in their selected fields. Currently, science, technology, engineering and math (STEM) students are entitled to 29 months of OPT. Under the new policy, students in other degree fields will also be eligible, and the training period is expected to be extended beyond the 29 months. I’m anxious to see the details for how this will roll out.

Finally, three other important issues will be addressed. The government will provide specific guidance for L1B visa applications, which allow employers to transfer workers with specialized knowledge from their overseas operations to the U.S. Such applications have been particularly challenging in recent years scrutinizing whether their knowledge is indeed specialized. There will also be guidance for streamlining all visa applications, something that is much needed, given the inconsistencies in adjudication standards.

Lastly, the U.S. Customs and Immigration Services will be tasked with modernizing their practices and reducing the burden on employers. The world is a very different place from when the original laws and regulations were first established. Now, with technology advancement and cost-effective business practices, an entrepreneur can run a successful and flourishing business from his or her basement. Home offices are quite common. Yet immigration policies require routine scrutiny and denial of applications for businesses run out of people’s homes. Hopefully the new guidance, among other things, will take such modern businesses practices into account.

President Obama is brave to take the steps he’s proposing to improve our broken immigration system and he should be applauded for his efforts. He has done as much as he can do within this power to affect change.

The technology industry must support these efforts, but continue to press Congress to find permanent fixes.

Tahmina Watson is an immigration attorney and founder of Watson Immigration Law in Seattle. She was a practicing barrister in London, UK, before immigrating to the United States herself. She is a frequent speaker, author, and blogger on immigration law matters, regularly quoted and published in newspapers and magazines. You can read more from her on the Watson Immigration Law Blog

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