DHS/DOL Regulatory Agendas Hint at Obama’s Executive Action on Business Immigration

The Departments of Homeland Security (DHS) and Labor (DOL) are planning to issue regulations that implement aspects of President Barack Obama’s executive action on business immigration, including additional immigration avenues for foreign entrepreneurs, an overhaul of the permanent labor certification program (PERM), and expanded job mobility for certain I-140 beneficiaries waiting for their green cards.

According to DHS’s spring regulatory agenda, released May 21, the department is planning to issue a proposed rule in August that would allow foreign entrepreneurs to enter the U.S. via parole. The parole authority, contained in Section 212(d)(5) of the Immigration and Nationality Act, allows for the admission of certain immigrants through other-than-normal channels if it would promote a “significant public benefit.”

DHS said the proposed rule would allow such admission, on a case-by-case basis, of “certain inventors, researchers, and entrepreneurs who will establish a U.S. start-up entity, and who have been awarded substantial U.S. 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.”

Under the proposed rule, the entrepreneur could be eligible for temporary parole into the U.S. based on “investment, job-creation, and other factors,” DHS said.

The proposed rule is one of several elements contained in the president’s executive action on immigration, announced in November. The action also suggested bringing in immigrant entrepreneurs through the national interest waiver process—which allows such immigrants to be awarded green cards without going through the labor certification process—but that doesn’t appear in the current regulatory agenda.

Job Mobility for I-140 Beneficiaries

Another aspect of the executive action that is contained in the regulatory agenda is the planned October release of a proposed rule that would provide certain benefits to the beneficiaries of approved I-140 immigrant petitions for an alien worker.

DHS said the proposed rule would allow certain I-140 beneficiaries to obtain work authorization while awaiting their green cards and “remove unnecessary restrictions on the ability to change jobs or progress in careers, as well as provide relief to workers facing lengthy adjustment delays.” It also would clarify the meaning of “portable work authorization,” the department said.

The DHS regulatory agenda also includes a proposed rule, planned for August, that would expand optional practical training for foreign graduates with science, technology, engineering and mathematics degrees.

DHS did not describe what that expansion would entail, but a memorandum from DHS Secretary Jeh Johnson issued as part of the president’s executive action called for an expansion of the degree programs eligible for OPT as well as the length of time foreign graduates can work in the U.S. in OPT status. Johnson’s memo also stated that the OPT program should require stronger ties to degree-granting institutions and should include labor market protections to prevent the displacement of U.S. workers.  The DHS regulatory agenda also would allow the 17-month OPT extension for STEM degrees to apply to prior or most recent degrees.

PERM Overhaul in the Works

New to the Department of Labor’s regulatory agenda is a proposed rule, slated for release in December, that would overhaul the permanent labor certification program. The action also was announced as part of the president’s executive action.

DOL said the department hasn’t “comprehensively examined and modified” PERM in 10 years, and “much has changed in our country’s economy, affecting employers’ demand for workers and the availability of a qualified domestic labor force.” Furthermore, the DOL said, technological advancements “have dramatically altered common industry recruitment practices, and the Department has received ongoing feedback that the existing regulatory requirements governing the PERM process frequently do not align with worker or industry needs and practices.”

The proposed rule therefore is intended to “consider options to modernize the PERM program” to make it “more responsive to changes in the national workforce, to further align the program design with the objectives of the U.S. immigration system and needs of workers and employers, and to enhance the integrity of the labor certification process,” DOL said.

 

 

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