WASHINGTON The immigration reforms that President Obama announced have left people on all sides of the tech immigration issue uncertain and frustrated.
The so-called reforms revealed Thursday by the White House are vague, and what details are offered are wide open to interpretation. The proposed changes could make it easier for businesses to hire foreign workers, but they also could make it harder.
What the tech industry wants most is an increase in the H-1B cap, and that's only something Congress can do. Obama, however, has the ability to take pressure off the H-1B cap by allowing businesses to more easily use workers in other visa categories.
Take, for instance, Infosys, the giant offshore outsourcing company based in Bangalore, India, and one of the largest users of the H-1B visa. The company had 12,767 employees in the U.S. on an H-1B visa as of March. It had 1,322 employees on an L-1 visa, which is used by multinational firms for intra-company transfers.
Intra-company transfers are limited to those employees who are managers or have "specialized knowledge," something "beyond the ordinary." But if the White House changed the definition of an L-1 visa to make it less restrictive, a multinational company could increase its use of the L-1 visa and decrease its use of the H-1B. Unlike the H-1B visa, there is no cap on L-1 visas.
In its immigration announcement, the administration said it will "clarify its guidance" on the L-1 visa "while protecting American workers" and not much beyond that. Is it planning to make it easier or harder to use the L-1?
"In a way, everything is up in the air," said Kim Thompson, a lawyer and head of the immigration practice group at Fisher & Phillips in Atlanta. Thompson said it could be four to six months before all the immigration issues that Obama raised are sorted out by federal agencies.
The lack of specificity may be a deliberate move by the White House, said W. Kam Quarles, an immigration attorney at McDermott Will & Emery in Washington, and "part of a larger strategy to keep the business community energized on this issue and to keep pushing Congress" for legislative reforms.
Another possibility for reducing the pressure on the H-1B visa cap is Optional Practical Training (OPT). This program allows someone on a student visa to take a job, either as an employee or a contractor. Until 2008, OPT had a 12-month limit but that was extended an additional 17 months for STEM students, for a total of 29 months.
Obama's reforms seek to "expand and extend" the use of the OPT program, but, as with just about everything else served up Thursday, there are no details. The administration may well extend this program by two years or more. It also could expand the number of academic categories beyond STEM that would be eligible for an extension, such as finance. But the White House also wants reforms, specifically requiring "stronger ties between OPT students and their colleges and universities following graduation."
On the one hand, the president is giving, said Susan Cohen, an attorney at Mintz Levin and head of its immigration practice. On the other hand, the proposals are "tempered." The stronger university ties being sought may be designed to ensure that the students are "actually pursing training," she said.
The OPT program is controversial. Students aren't subject to any wage requirement, and the top school for OPT extensions was a private university with a campus in India. There were 123,000 approved OPT students last year, compared to 28,500 in 2008.
Some argued that Obama had much bigger options, particularly for green cards. He could have required that all 140,000 employment-based green cards go to workers. Today, half of those employment green cards are set aside for dependents of those workers.
The White House, in its announcement, affirmed that it will allow some spouses of H-1B visa holders to take jobs. It has already issued rules and could act quickly to implement the spouse rule. It also said the reforms will make it easier for some green-card holders to change jobs.
But, overall, until the White House releases its proposed rules and guidance memos, its tech immigration plans will include many question marks. "This is obviously the very beginning," said Bob Sakaniwa, the senior associate director of advocacy at the American Immigration Lawyers Association.
Critics believe that the balance sheet of changes, once completed, will give businesses more of what they want.
Ron Hira, a public policy professor at Howard University, said the White House is "trying to appease industry but couldn't do what industry wants, which is tripling of the H-1B program."
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