The Immigration Accountability Executive Actions: Ramifications for Business - McDermott Will & Emery

The Immigration Accountability Executive Actions: Ramifications for Business

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In Depth

On November 20 and 21, 2014, President Obama announced his plan for executive action on the United States’ immigration problems, known as the immigration accountability executive actions. The actions represent the most comprehensive immigration reforms seen in many years. While most attention has been focused on the provisions affecting undocumented aliens, the actions also address issues of interest to businesses, professionals, investors and other highly skilled workers, in particular those covered under the Presidential Memorandum “Modernizing and Streamlining the U.S. Visa System for the 21st Century.” The focus of the immigration accountability executive actions is to grow the economy and create jobs for U.S. workers, while allowing U.S. businesses to more readily hire and retain foreign employees.

Employment Authorization for Dependents on H-4 Visas

Earlier in 2014, an announcement was made that dependent spouses of H-1B specialty occupation visa holders who are themselves in H-4 status will be granted work authorization under certain conditions. It is anticipated that the long-awaited rule on this issue will be published later this year or in early 2015.

Revisions to the Employment-Based Immigrant Visa System

The U.S. immigration system operates on a quota basis, with many visa numbers remaining unused despite the severe backlogs in certain employment categories. Important steps will be taken to modify the current system, including the following:

  • All immigrant visas authorized by Congress will be issued each fiscal year.
  • Those intending immigrants with approved employment-based immigrant petitions who are caught in the quota backlog will be able to file for adjustment of status so that they can obtain benefits in connection with pending adjustment applications. This provision is expected to benefit 410,000 people and essentially involves allowing such individuals to obtain an extension of their current work visa status or temporary work and travel permits.
  • U.S. Citizenship and Immigration Services (USCIS) will be directed to consider policy or regulatory changes to benefit beneficiaries of approved employment-based immigrant visa petitions, enabling such petitions to remain valid where an employee changes jobs or employers. This provision would allow employees and their new employers to avoid filing new applications and immigrant visa petitions for employees whose petitions already have been approved. USCIS is to provide guidance on what the terms “same or similar” mean in this context for “portability,” and to clarify that promotions to supervisory positions and transitions to related jobs in the field of endeavor are permitted. Portability refers to the ability of an individual who is applying for permanent residence through employment to change employers without the need to re-file a permanent residence application.

Changes to Optional Practical Training for Foreign Student Graduates of U.S. Universities

Optional practical training (OPT) enables graduates of U.S. degree programs to engage in one year of post-graduate employment in the United States. The executive actions would enable graduates of more programs to be eligible for OPT. Additionally, graduates of degree programs in science, technology, engineering and mathematics (STEM) will be able to secure a longer period of time to work under OPT. Also under consideration is a provision that would enable those whose first degree is in a STEM field, but whose post-master’s is not, to take advantage of the STEM extension.

Promotion of Research and Development in the United States

USCIS will be directed to clarify the standard by which an EB-2 national interest waiver can be granted to promote its greater use for benefit of the U.S. economy. Additionally, USCIS is to propose a program that would permit parole status for inventors, researchers and founders who have been awarded “substantial investor financing and who otherwise can create innovation and new jobs by development of technologies or cutting-edge research.”

Greater Consistency in Standards Used for the L-1B Visa Program

The use of the L-1B “specialized knowledge” visa by businesses has been plagued by “vague guidance and inconsistent interpretation.” A forthcoming policy memorandum will provide “clear, consolidated guidance on the meaning of ‘specialized knowledge.’”

Modernization of PERM

Because the U.S. Department of Labor’s (DOL’s) permanent labor certification system (PERM) was created 10 years ago, it includes certain provisions for outdated methods of recruitment, as well other practices that have not kept up with the times. DOL will address such issues, including the possibility of “expedited” processing.

Promotion of Access to U.S. Citizenship

Access to U.S. citizenship will be made easier by the acceptance of credit cards for the processing fees, the possibility for partial waiver of the fees in certain situations, and a media campaign to promote citizenship awareness in the 10 states that are home to 75 percent of the lawful permanent resident population.

There are many other provisions that have garnered much attention, including the issue of securing the borders while simultaneously offering expansion of the Deferred Action for Childhood Arrivals program (DACA). DACA allows certain undocumented individuals who arrived in the United States as children to remain in the United States and obtain work authorization. Under the new provisions, the age cap has been removed, and the date by which an individual must have been in the United States has been moved to January 1, 2010. The period of DACA and work authorization will be increased to three years. Additionally, a new program called Deferred Action for Parental Accountability (DAPA) will be created to address the issue of parents who have a U.S. citizen or permanent resident son or daughter of any age as of November 20, 2014; have been continuously present in the United States since before January 1, 2010; and were physically present in the United States on November 20, 2014, and are present at the time of requesting DAPA.