Obama immigration plan called vague, frustrating

WASHINGTON — The immigration reforms that President Obama announced have left people on all sides of the tech immigration issue uncertain and frustrated.

The so-called reforms revealed Thursday by the White House are vague, and what details are offered are wide open to interpretation. The proposed changes could make it easier for businesses to hire foreign workers, but they also could make it harder.

What the tech industry wants most is an increase in the cap on H-1B visas, and that’s  something only Congress can do. Obama, however, has the ability to curb demand for H-1B visas by allowing employers to more easily use workers in other visa categories.

Take, for instance, Infosys, the giant Bangalore, India-based outsourcing company that’s one of the largest users of the H-1B visa. The company had 12,767 employees in the U.S. on H-1B visas as of March. It had 1,322 employees on L-1 visas, which are used by multinational businesses for intra-company transfers.

Intra-company transfers are limited to those employees who are managers or have “specialized knowledge” — something “beyond the ordinary.” But if the White House changed the definition of an L-1 visa to make it less restrictive, a multinational company could increase its use of L-1 visas and decrease its use of H-1Bs. Unlike the H-1B visa, there is no cap on the number of L-1 visas that can be issued.

In its immigration announcement, the administration said it will “clarify its guidance” on the L-1 visa “while protecting American workers” — and not much beyond that.

Is the White House planning to make it easier or harder to use L-1 visas?

“In a way, everything is up in the air,” said Kim Thompson, a lawyer and head of the immigration practice group at Fisher & Phillips in Atlanta. Thompson said it could be four to six months before all the immigration issues that Obama raised are sorted out by federal agencies.

The lack of specificity may be a deliberate move by the White House, said W. Kam Quarles, director of legislative affairs at McDermott Will & Emery in Washington. Not releasing a detailed plan could be “part of a larger strategy to keep the business community energized on this issue and to keep pushing Congress” for legislative reforms, he said.

Another possibility for reducing the pressure on the supply of H-1B visas is expansion of the Optional Practical Training (OPT) program, which allows someone on a student visa to take a job, either as an employee or a contractor. Until 2008, OPT had a 12-month limit but that was extended an additional 17 months for STEM students, for a total of 29 months.

Obama’s reforms seek to “expand and extend” the use of the OPT program, but, as with just about everything else served up Thursday, there are no details. The administration may well extend this program by two years or more. It also could expand the number of academic categories eligible for an extension beyond science, technology, engineering and math. For example, finance could be added to the list. But the White House also wants reforms, and is specifically requiring “stronger ties between OPT students and their colleges and universities following graduation.”

On one hand, the president is giving, said Susan Cohen, an attorney at Mintz Levin and head of that firm’s immigration practice. On the other hand, the proposals are “tempered.” The stronger university ties being sought may be designed to ensure that the students are “actually pursuing training,” she said.

The OPT program is controversial. Students aren’t subject to any wage requirement, and the top school for OPT extensions was a private university with a campus in India. There were 123,000 approved OPT students last year, compared to 28,500 in 2008.

Some argued that Obama had much bigger options, particularly for green cards. He could have required that all 140,000 employment-based green cards go to workers themselves. Today, half of those employment green cards are set aside for dependents of workers with permanent residency status.

In its announcement, the White House affirmed that it will allow some spouses of H-1B visa holders to take jobs. It has already issued rules and could act quickly to implement the spouse rule. It also said the reforms will make it easier for some green-card holders to change jobs.

But, overall, until the White House releases its proposed rules and guidance memos, its tech immigration plans will include many question marks. “This is obviously the very beginning,” said Bob Sakaniwa, senior associate director of advocacy at the American Immigration Lawyers Association.

Critics believe that the balance sheet of changes, once completed, will give businesses more of what they want.

Ron Hira, a public policy professor at Howard University, said the White House is “trying to appease industry but couldn’t do what industry wants, which is a tripling of the H-1B program.”