Obama's options for tech immigration take shape

Path is clear for approval of H-1B spouse rule, other changes may come too

When President Barack Obama takes executive action on immigration, he's expected to give final approval to a rule allowing spouses of H-1B visa holders, now barred from working in the U.S., to get jobs. There could be more changes as well as the Obama administration has met with various tech groups to collect wish lists.

Obama is expected to use his executive authority over the coming weeks to make significant changes to immigration rules in the absence of congressional action.

A roadmap for the president is the Senate's comprehensive immigration reform bill (S. 744), which has stalled in the House. Obama is being urged to adopt provisions of the bill that don't require congressional action.

The House isn't expected to vote on the bipartisan Senate bill, which passed in 2013.

Two key items believed to be getting consideration by the administration were included in the Senate bill.

First: The U.S. now issues 140,000 employment-based permanent visas or green cards each year, half of which go to dependents. The Senate bill exempts dependents from the cap, effectively doubling the number of green cards available to principals.

The idea of only counting principals and not dependents, including children, against the cap extends to family permanent residency as well. That provides an opportunity to create broad-based support for principals-only reform.

A draft letter from several groups to the president calls for the elimination, or at least a reduction, in the "egregious backlogs for legal immigration by counting only principals against the limits set by the Immigration Act of 1990."

The letter was signed by the IEEE-USA, the Semiconductor Industry Association, the Society for Human Resources Management, and the League of United Latin American Citizens, among other groups.

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, believes the White House has the ability, via executive action, to allocate all available employment-based green cards to principals only.

Second: The tech industry also wants Obama to use executive action to "recapture" unused green cards from prior years, and make them available to people now in the permanent residency backlog. The Congressional Budget Office estimates that recapturing unused green cards from 1992 to 2013 would add about 250,000 visas.

The "recapture" action was also sought in the Senate bill.

According to a several sources, some in the high-tech industry may ask the White House to establish an H-1B priority system. The priority system idea was not part of the Senate bill.

The U.S. now uses a lottery system to distribute visas if the 85,000 cap is oversubscribed. A priority system would give preference to firms that aren't dependent on H-1B visas. This may hurt the major users of H-1B visa, offshore outsourcing firms based both in the U.S. and India.

If a company has 51 or more full time employees and 15% of those workers are on an H-1B visa, it is categorized by the U.S. as H-1B dependent and subject to special rules. There is also opposition within the tech industry to a priority system, so it may lack the support needed.

More certain is final White House approval of a rule to allow spouses of H-1B visa holders who are seeking green cards with authorization to work. For now, spouses can't hold jobs.

The U.S. received nearly 13,000 written comments on the proposed rule before the comment period closed last month.

Writing in opposition was the Society of Professional Engineering in Aerospace (SPEEA), whose members are employed as scientists and in technical positions at several large companies, including Boeing.

SPEEA said that there is "the strong likelihood" that spouses will have science, technology, engineering and math degrees (STEM), and that in many cases may work for the same employer are their H-1B holding spouse. It warned that if the rule is adopted, "employers will likely exploit this opportunity by preferentially hiring H-1B workers with STEM-degreed spouses in order to acquire two STEM workers with one H-1B visa."

The U.S. Chamber of Commerce, supports of the rule, arguing that employed spouses "will improve the likelihood that highly skilled H-1B workers will seek to stay in the U.S. on a permanent basis and remain in the U.S. labor force."

The Obama administration, according to Politico, met with tech and other business sectors earlier this month to discuss immigration issues.

Senator Jeff Sessions (R-Ala), a critic of the H-1B program, said this week in a statement that "the same group of CEOs" that helped to write the Senate immigration bill "is now scheming with the White House to extract by executive fiat what was denied to them by the American people and Congress."

Read more about gov't legislation/regulation in Computerworld's Gov't Legislation/Regulation Topic Center.

Copyright © 2014 IDG Communications, Inc.

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