By Fawn Johnson
October 6, 2015 at 4:59 pm ET
The Department of Homeland Security is crafting regulations that could fundamentally alter the way temporary work visas function in the United States. The changes could be a major boon for the tech world, potentially smoothing the way U.S. employers and foreign employees start new companies and adapt to a cutting-edge industry.
DHS is aiming to give foreign guestworkers access to work authorization papers that will allow them to change jobs without losing their chance at permanent legalization, according to DHS and people with knowledge of the deliberations.
Depending on how the agency crafts the details, the rules could also make it easier for undocumented immigrants to get work papers, according to lawyers who have been briefed on the DHS discussions. While these work papers wouldn’t give an unauthorized job seeker any way to become legal, such a work document would make it far easier for the undocumented worker to get a job.
The rules, scheduled to be published later this year, come at a time when U.S. legal immigration is in disarray. Hundreds of thousands of foreign workers on temporary visas are in a limbo that can last decades as they wait in line for a green card. A week and a half ago, the State Department was forced to revise an earlier bulletin on green card availability that moved thousands of already-vetted green-card applicants back in the queue.
DHS is proposing to give long-time guestworkers, mostly H-1B visa holders, employment authorization documents that would allow them to change jobs even though their employers have sponsored them for a green card. For the first time, those workers would be able to leave their employer without losing their green card application. The rules are also intended to protect green card applicants against losing a green card petition if the sponsoring employer goes out of business.
The work documents would be similar to new portable employment authorization documents, or EADs, that are available to more than 600,000 recipients of President Obama’s deferred action program for undocumented immigrants who arrived here as children.
Critics say these deferred action employment documents are basically default legalization for the recipients, and they would no doubt cry foul at more of them being handed out. Two congressional immigration hawks, Sen. Charles Grassley (R-Iowa) and Rep. Bob Goodlate (R-Va.) have repeatedly expressed concern that Obama’s deferred action program is too lax, allowing people who shouldn’t qualify to be given the authority live and work legally in the United States.
On a more technical level, the most immediate problem with this approach is that an employment document by itself does not confer legal residency in the United States. “EADs don’t give you status,” said Bruce Morrison, a veteran immigration attorney who represents IEEE-USA, a group that represents American tech workers. He is also is a former Democratic representative from Connecticut who helped write the 1990 immigration law.
Morrison told Morning Consult that he has asked DHS to clarify what, exactly, the status of foreign worker would be if he left his job carrying a valid employment document but no other visa. He has received no answer. Morning Consult asked DHS the same question. A spokeswoman at the agency’s Office of U.S. Citizenship and Immigration Services said the agency can’t comment on pending regulations.
Experts are left to conclude that the worker would be out of status — i.e., illegal — if that person didn’t have another employer lined up who would sponsor her for a temporary work visa. “I think you would need something to hang your hat on. You need some type of status,” said Betsy Lawrence, a federal policy liaison at the American Immigration Lawyers Association.
The portable work paper in question at DHS is dubbed internally as “open market employment authorization document,” according to a draft agency discussion memo obtained by Morning Consult. The employment authorization document would be given to foreign workers and their family members who have an active green card petition that has been approved for at least one year.
These parameters are by no means the final word. DHS is still deliberating the contours of the rule and the agency says it cannot provide public details of the proposal before it publishes. The details in this story reflect discussions that the agency has had with outside professionals about how the proposed program would work.
Giving undocumented workers employment authorization documents is among the options under discussion at DHS, according to the draft memo. One advantage of that approach, from the administration’s perspective, would be to “address the needs” of some of the undocumented population that President Obama wants to shield from deportation. Currently, unauthorized parents of U.S. citizens, for example, can’t work legally, although the administration is in the court proceedings to give them the same deferred action as those who arrived here as children.
Attorneys who are watching the DHS discussions are aware that employment papers for the undocumented population is a possibility, but they also say it’s a slim one. There is no way that critics of Obama’s immigration policies would allow that kind of regulatory language to slip through unnoticed, they say. Morrison described the scheme as a complicated workaround to avoid criticism that will come no matter what the administration does.
Other options DHS is considering would limit the impact on the undocumented population. The rules could provide employment papers only to individuals who are lawfully present in the United States, including those who fell out of status at some point but managed to obtain waivers to remain here. Or it could limit those employment papers only to people who are currently on some type of valid work visa and have a pending green card application.
No matter what option DHS chooses, the changes could ease the pressure on some long-term guestworkers. Green cards are gold for foreigners seeking to have careers in the United States. Professionals seeking green cards through an employer now are stuck with a hard cap on the number of applications that can be processed each year. That can mean long waits and sometimes an inability to move up in a job. What’s more, under current law the sponsoring employer can cancel a worker’s green card petition if that person quits.
Few people dispute the good intentions behind DHS’s pending rules. The inability for foreign workers to change employers because of green card delays is a major problem in the tech industry, not to mention for the workers. It’s standard practice for many tech companies to sponsor their H-1B employees for green cards as a way of keeping them happy and productive. The tech industry has long complained that the wait for green cards is hampering their ability to hire and retain foreign workers. What upstart foreign engineer wants to wait 10 years to go start her own company?
“I think is going to be great if they write it correctly,” said Greg Siskind, a founding partner of Siskind Susser law firm. “A lot of these people are entrepreneurs who want to go out and start companies. This is going to allow them to do that.”
Maybe. Immigration professionals from a variety of viewpoints are concerned that the way DHS is trying to ease the situation will cause more problems than it solves. At a minimum, it seems foreign workers would still need some type of work visa to remain in the country legally. Those aren’t so easy to come by. Siskin is hoping that DHS will also give some type of legal status to foreign entrepreneurs, which could partially address that problem.
There also could be coordinated efforts to take advantage of loopholes on behalf of unauthorized immigrants. Employers, on occasion, will file petitions for their unauthorized workers to get green cards. Those petitions will never be approved under current law, but there are incidents in the past where the law has changed and favored out-of-status people with already-filed green card petitions. Having paperwork already in the pipeline makes gives some ray of hope to long-term undocumented residents that they might finally become legal.
The DHS rules could mean that those types of workers get employment authorization documents that are not tethered to their employers. Once they have those papers, they could work anywhere. A work authorization paper signals to any employer who asks that a job candidate is in the country legally, even if he isn’t. It also shields that employer from liability for hiring an worker without papers.
Fawn Johnson previously worked at Morning Consult as an editor for policy coverage.