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Obama has big options for green card, H-1B reform without Congress

Patrick Thibodeau | July 10, 2014
With Congress refusing to move on immigration reform, President Barack Obama has options that could have broad impacts on immigration generally, and on the H-1B and green card visa systems in particular.

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.


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