WASHINGTON - With Congress failing to agree on immigration reform, President Barack Obama is promising to bring changes through executive actions. He has options that may have broad impacts on immigration generally, as well as the H-1B and green card visa systems.
Obama could, for instance, expand permanent residency immigration, or green cards for family, diversity and employment- based categories by ending the practice of counting dependents against the cap.
The president could also try to make changes to the H-1B visa program, possibly by creating a priority system that favors U.S.-based firms or by setting restrictions that affect the largest users -- offshore outsourcing firms -- thus, making it easier for other firms competing for the 85,000 H-1B visas.
The administration has not outlined its next steps on immigration, but it does have ways of changing immigration without Congressional action.
The U.S., for instance, sets a cap of 140,000 employment-based green cards annually, but only about 65,000 go to the principals; the remainder go to dependents.
If dependents are treated separately, and not counted against the employment-based caps, that would mean all 140,000 green cards could go to workers who meet the proper skills and employment criteria.
The decision to count dependents against the caps "is an administrative interpretation" of the law, "and anything that's an administrative interpretation can be changed," said former U.S. Rep. Bruce Morrison (D-Conn.), who chaired the House Immigration subcommittee responsible for drafting the 1990 immigration reform legislation that created the present system.
Morrison has been representing the I-EEE USA, which supports a green card increase and has opposed an H-1B cap increase.
The legal argument for only counting the principals against the caps is the same for all the visa categories, which includes family and diversity categories at 226,000 and 50,000 visas, respectively, said Morrison.
Along with his work on the original law, Morrison was part of the conference committee that set the final law and worked with then Sen. Joe Biden. Vice President Biden was at that time chairman of the Senate Judiciary Committee.
It is in the president's power to draw up a new interpretation of the law that doesn't count dependents against the cap, said Morrison. "That's the better answer," he said, because it helps solve a number of problems, including long wait times for visas and significant family backlogs
"It's something the president can do -- he has the power to do it," said Morrison.
The president has not been averse to making major administrative changes on immigration. His administration is now getting comments on a rule change to allow spouses of H-1B visa holders seeking green cards to find work. They can't hold jobs under present rules. Some 97,000 would obtain employment authorization under this regulatory change.
But Obama isn't the only one who has changed the system with his pen.
In 2008, President George W. Bush allowed foreign STEM students to work in the U.S. for up to 29 months on a student visa, delaying the need for them to get an H-1B visa. Before that change, they could only work in the U.S. for 12 months under the Optional Practical Training (OPT) program.
Critics called the OPT extension a defacto H-1B hike. In the last six years, 560,000 OPT extensions have been approved, including 123,000 in 2013.
Obama's administration has expanded the OPT extension by broadening the number of eligible degrees.
The administration has also signaled an interest in raising the H-1B cap, but in lieu of an increase via immigration reform there are discussions among lawmakers about coming up with ways to make it easier for U.S. firms get H-1B visas, according to two independent sources familiar with the talks.
For now, the oversubscribed H-1B visa is distributed via lottery. But some lawmakers could move toward a system that gives priority to U.S.-based firms, which could disadvantage offshore IT services companies. Others caution that such a change might have little impact since it wouldn't apply to large U.S.-based H-1B users and could prompt offshore-based firms to apply for visas through U.S.-based subsidiaries.
The administration could also try to implement, administratively, a 50-50 rule, that seeks to limit the use of H-1B visas to half a firm's U.S.-based workforce. This change, if implemented, could curb visa use by the largest IT services firms. But the legal ability to do this without congressional action is not clear.
Ron Hira, a public policy professor at the Rochester Institute of Technology, said the green card proposal outlined by Morrison could affect the "careful coalition" that has backed comprehensive immigration reform.
"The green cards for employers have been a carrot -- or maybe a stick -- to induce the high-tech employers and the U.S Chamber [of Commerce] to support comprehensive Immigration reform," said Hira. "In other words, if Obama gives the high-tech industry what it wants, then it is less likely that (Mark) Zuckerberg and (Bill) Gates will be fighting for comprehensive immigration reform."
On creating a system that makes H-1B visas priority based, Hira in Senate testimony last year recommended prioritizing advanced degree graduates of U.S. universities. "If there is any increase in the cap, and I don't think it is warranted, it should be allocated towards advanced degree graduates of U.S. universities," said Hira at a hearing of the Senate Judiciary Committee.
Daniel Costa, director of immigration law and policy research at the Economic Policy Institute, believes the president's executive reforms should mainly focus on the unauthorized immigrant population.
"That's the most pressing issue in the system, because having 5% of the labor market exploitable and lacking in labor and employment rights is bad for everyone, but especially for low-wage workers," said Costa. "I don't see a strong argument for tinkering at the edges of the employment-based system at this moment."
"Employers aren't the ones who are suffering and getting torn apart from their families," said Costa.
"Support for immigration and coming up with a solution for the unauthorized immigrant population is high even among conservatives, according to almost every poll, so I don't see many political consequences if he stays within the bounds of the law," said Costa.
If Obama were to take executive actions, they would not be repealed until 2017 at the earliest, he said.
Patrick Thibodeau covers cloud computing and enterprise applications, outsourcing, government IT policies, data centers and IT workforce issues for Computerworld. Follow Patrick on Twitter at @DCgov or subscribe to Patrick's RSS feed. His e-mail address is firstname.lastname@example.org.
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