Obama’s Executive Actions Will Ease Visa Restrictions for Entrepreneurs, High Skilled Workers, and Graduate Students

On November 20, 2014, President Obama’s executive order announcement also includes a plan to ease visa restrictions for high-skilled immigrants, graduates, and entrepreneurs. The President’s actions will “streamline legal immigration to boost our economy and promote naturalization.” Many business leaders have proposed this action to enable foreign nationals to enter and remain in the U.S. to engage in research, development, and innovation.

Some of the key changes that will affect these highly skilled immigrants, graduates and entrepreneurs are:

Providing Portable Work Authorization for High-Skilled Workers awaiting Legal Permanent Residence Status and their Spouses.

Currently, employees with approved LPR applications have limited options under current law to obtain employment-based visas.The filing process for the Permanent labor Certification (PERM) will be streamlined and modernized.

Many visas, including the H-1B, require a sponsoring employer and valid employer-employee relationship, which is difficult for founders and other self-employed foreign nationals to establish. DHS [Department of Homeland Security] will make regulatory changes to allow these workers to move or change jobs more easily. In addition, DHS is finalizing new rules to give certain H-1B spouses employment authorization as long as the H-1B spouse has an approved LPR application.


Enhancing Options for Foreign Entrepreneurs

Many entrepreneurs and foreign nationals face significant challenges in entering the U.S. to meet with venture capitalists, raise money, or develop and direct their businesses. DHS will expand immigration options for foreign entrepreneurs who meet certain criteria for creating jobs, attracting investment, and generating revenue in the U.S., to ensure that our system encourages them to grow our economy.  However, the criteria will include income thresholds so that these individuals are not eligible for certain public benefits like welfare or tax credits under the Affordable Care Act.

Parole Status Gives Individuals Lawful Status to Travel to Their Counties of Origin

DHS will clarify guidance on this matter to provide greater assurance to individuals with pending LPR applications or certain temporary status the ability to travel abroad with advanced (“parole”) permission.

Parole status is typically granted for humanitarian reasons and authorizes foreign nationals to temporarily enter the U.S. without a visa for a specified period of time. The proposed change would expand the categories of foreign nationals eligible for parole status to include foreign entrepreneurs, inventors, and founders of start-up companies who have been awarded substantial U.S. investor financing or demonstrate promising innovation and job creation. Parole status would allow these foreign nationals to temporarily pursue research and development, meet with venture capitalists, and engage in other business activities from within the U.S. rather than abroad. This change would help overcome existing visa limitations and provide a pathway for foreign entrepreneurs, investors, and founders to remain in the U.S. on a more permanent basis.  Miller Canfield

U.S. Citzenship and Immigration Services (USCIS) and the Department of Homeland Security (DHS) has not yet announced when the regulations and guidelines will be implemented, though it is predicted to be around early 2015.

Expand and Extend the Existing Optional Practical Training [OTP] program for Foreign Graduate Students

Foreign nationals studying in the U.S. on F-1 student visas can already request twelve months of “optional practical training” (OPT) employment authorization for temporary employment in their relevant field of study, including self-employment. In order to strengthen educational experiences of foreign students studying science, technology, engineering, and mathematics (STEM) at US universities, DHS will propose changes to expand and extend the use of the existing Optional Practical Training (OPT) program for an additional 17 months of OPT [total of 29 months] and require stronger ties between OPT students and their colleges and universities following graduation.

This change would make it easier for foreign nationals with start-up businesses to remain in the U.S. after graduation to direct and develop their own businesses and companies. It would also give foreign graduates additional time in the U.S. to grow their business and potentially become eligible for a green card.  Miller Canfield

The enhancements to the OPT program would be accomplished by regulation and formal rulemaking. As such, these changes would likely not be effective until late 2015 or 2016 at the earliest.

Original Article/References: Miller Canfield and White House