New Details Emerging on Obama Executive Action for High-Skilled Immigration

The proposed reforms include the authority to grant "parole, on a case-by-case basis, to eligible inventors, researchers and founders of start-up enterprises who may not yet qualify for a national interest waiver." So said a fact sheet on the website of U.S. Citizenship and Immigration Services (USCIS), the Department of Homeland Security agency that the executive action has charged with putting most of the reforms into practice. To qualify for such an entrepreneurial parole, an applicant will need to have landed "substantial U.S. investor financing" or demonstrably "hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research," the fact sheet said. It's obviously not yet known how high any USCIS rulemaking would set the bar for the needed financing or even how specifically it would define the term "substantial."

Immigration-law paroles have been used historically for humanitarian purposes or -- under "advance paroles" -- to permit foreigners who've applied for green cards to leave and re-enter the U.S. without having to re-apply for a new visa, the fact sheet said. This would be the first use of paroles for foreign-entrepreneurial purposes, it said. Rulemakings will determine the terms of such paroles, it said. By the USCIS’s own admission in a backgrounder, humanitarian paroles are "used sparingly to bring someone who is otherwise inadmissible into the United States for a temporary period of time due to a compelling emergency." They’re granted only for "a period of time that corresponds with the length of the emergency or humanitarian situation," the agency said.

As for the more rigorous procedure through which foreign entrepreneurs may already apply for natural interest waivers, the USCIS rulemaking will "clarify the standard by which a national interest waiver may be granted to foreign inventors, researchers and founders of start-up enterprises to benefit the U.S. economy," its fact sheet said. However, no federal "statutory or regulatory definition" exists for the term "national interest," so USCIS uses a 1998 New York state administrative order as the basis for a "three-prong test" to evaluate a national interest waiver application, the agency said in another backgrounder. To qualify for a national interest waiver, applicants must show their work in the U.S. will be "in an area of substantial intrinsic merit," will be national in scope and would benefit the U.S. work force, it said. In clarifying the national interest waiver standard that would be part of a rulemaking, one looming question will be whether the USCIS has the jurisdictional authority to set definitions on the term "national interest" or will need an act of Congress to establish that authority.

Obama’s proposals are "on the right track," but rulemakings take time, said Peter Muller, Intel director-immigration policy, in a blog post. By the administration’s "own acknowledgement," it could take "months and perhaps years to put the President's proposals into place because the most significant of his reforms will require extensive rulemaking procedures," Muller said. "In the best of times federal agencies are not known for the speed with which they issue new rules and given the crush of work facing them following the President's announcement it seems likely even the simplest of actions could take even longer than usual."

The economic benefits of the proposals for the high-skilled are obvious, said Jeffrey Zients, director of the National Economic Council and assistant to the president for economic policy, in a White House blog post. "But for too long, our broken immigration system has made it needlessly difficult for America to attract the best and brightest talent from around the world," Zients said. "Highly skilled workers often have to wait years, even decades to obtain the green cards that will allow them to fully contribute to our economy and become Americans over time. Entrepreneurs have no dedicated immigration pathway that allows them to grow their companies and create jobs here. And every year, we educate some of the world’s most talented students at our universities, only to compel them to go back to their home countries to compete against us."