Obama's immigration push: what's in it for business? - Technical.ly Brooklyn

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Nov. 24, 2014 1:27 pm

Obama’s immigration push: what’s in it for business?

A raft of proposed executive orders from the Obama administration would make the National Interest Waiver, H-1B visas and "green card" access more streamlined, aiming to benefit business growth. Here's how.

A younger President Obama on the campaign trail in South Carolina, January 2008

(Photo by Flickr user Joe Crimmings, used under a Creative Commons license)

This is a guest post by Lisa Eisenberg, an attorney and adjunct professor of immigration law at the CUNY Graduate Center.

President Obama’s recent immigration speech is a major step in his use of his executive authority and seen as an important signaling to undocumented immigrants and families. But for a sector that has increased its lobbying for changes to how many skilled, educated foreigners can work here, the technology business perspective hasn’t taken a lead in the conversation just yet.

While Obama’s executive power to change the business immigration landscape is limited, the proposed measures may have a positive impact on the startup climate and the lives of high-skilled foreign professionals working in the U.S.

How a ‘National Interest Waiver’ could be like a ‘Startup Visa’

The President’s executive action aims to rectify a major deficiency in the U.S. immigration law — the absence of a Startup Visa or a similar option for foreign entrepreneurs establishing successful businesses in the U.S.

According to the President’s plan, more entrepreneurs, researchers, inventors and startup founders will become eligible for a National Interest Waiver — a path to permanent residence based on the benefit that our nation would derive from the alien’s work. National Interest Waivers are already available to entrepreneurs and founders whose work substantially benefits the United States, but the requirements are interpreted very restrictively by USCIS. The most challenging part is to prove that the immigrant’s work would benefit the United States nationwide, not just locally, and Obama proposes to make that clearer, according to various reports.

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We should expect some new guidance that would call for a more liberal, inclusive and flexible application of this standard, with a focus on job creation and technological advancement.

Get ‘Parole’ into the United States

In addition, some inventors, founders, entrepreneurs and researchers who are not qualified for a National Interest Waiver but whose works bears a promise of substantial job creation or innovation may become eligible for “parole” into the United States.  In determining the eligibility for this new benefit, USCIS will consider the existence of substantial U.S. investor financing as a positive factor.

Under the new policies, some spouses of H-1B visa holders (specialty employment, like many STEM roles) may get employment authorization, too. This will be very beneficial for many families of H-1B workers who, under the existing law, have to survive on one income for years until they receive green cards.

Earn your ‘Green Card’ faster

Employees sponsored by their employers for permanent residence through labor certification will get a chance to submit their adjustment of status (“green card”) applications sooner — either concurrently with, or after the approval of their immigrant visa petitions.

This would be a tremendous benefit for EB-3 professionals and skilled workers, as well as for EB-2 immigrants from India and China, who now have to stay with their employers in H-1B status for years because of quota backlogs.

Under this new policy, these workers’ green card applications will be accepted and held in pending status until their priority dates (“place in line” for green cards) are reached. Foreign graduates of U.S. universities, especially in STEM fields, may become eligible for additional extensions.

Finally, USCIS is expected to issue new memos on clarifying the “specialized knowledge” standard for L-1B visas for those with ‘specialized knowledge.’

There is no definitive time frame for the implementation of these business-friendly measures, but the Obama administration is hoping to use executive authority to enact large portions of these goals.

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Lisa Eisenberg

Elizaveta (Lisa) Eisenberg is an immigration and nationality attorney and an adjunct professor of immigration law at the CUNY Graduate Center. Find her on Linkedin here.

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