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Immigration Alert: President Obama Takes Executive Action on Immigration    

11.24.14

On November 20, President Obama addressed the nation, unveiling a plan to change our U.S. immigration system through executive action. His announcement largely focused on providing temporary legal status to undocumented immigrants by expanding the Deferred Action for Childhood Arrivals (DACA) program to encompass a broader class of children to certain qualifying parents of U.S. citizens and lawful permanent residents. Not included in the President’s address were a series of new policies and regulations related to business immigration that will be deployed through the Department of Homeland Security (“DHS”), U.S. Citizenship and Immigration Service (“USCIS”), and Immigration and Customs Enforcement (“ICE”) in the upcoming months. The following agency action is expected:
 
  • Modernizing the Employment-Based Immigrant Visa System: Our current immigration system imposes numerical limitations on the number of immigrant visas, or green cards, that may be issued in a fiscal year, which has resulted in extremely long waits before green card applications can be submitted or approved for certain foreign workers. In the past, the annual quota for certain employment-based categories has not always been exhausted. USCIS will explore recapturing and assigning unused immigrant visas from previous years for current green card applicants. This proposed change could potentially impact approximately 410,000 people. USCIS may also explore regulatory or policy changes to allow employees with approved I-140 petitions to change jobs or employers while waiting to file for their green cards.
     
  • Reforming Optional Practical Training (“OPT”): OPT is a period during which certain F-1 international students can work and train in the U.S. in a field related to their degree program. DHS has directed ICE to develop regulations 1) expanding the degree programs eligible for OPT; and, 2) extending the period of time students in Science, Technology, Engineering, and Mathematics programs can use OPT.
     
  • Employment Authorization for H-4 Spouses: Currently, spouses of H-1B workers are not allowed to apply for employment authorization to work in the U.S. DHS will finalize a rule allowing certain H-4 spouses of H-1B workers who have pending employment-based green card applications to obtain employment authorization documents. The rule was proposed in May 2014, has gone through a public comment period, and is expected to be finalized in December or January.
     
  • Enhancing Opportunities for Research and Development: To increase utilization of the National Interest Waiver program, USCIS will issue guidance clarifying the standard by which the waiver can be granted. The National Interest Waiver allows non-citizens with advanced degrees or exceptional ability to sponsor themselves for permanent residence.  DHS has also directed USCIS to propose a program that would allow investors, researchers, and start-up entrepreneurs to hold parole status, enabling them to enter the U.S. to pursue research and development for new businesses in the United States.
     
  • Increasing Consistency in the L-1B Visa Program: Petitions for L-1B intracompany visas for individuals with specialized knowledge currently receive inconsistent review from USCIS, often resulting in delays in adjudication and uncertainty for multinational companies seeking to transfer employees to their U.S. offices.  USCIS will issue a policy memorandum providing clear, consolidated guidance on the meaning of “specialized knowledge.” 
     
  • Increasing Worker Portability: Many employees face lengthy wait times before their employment-based green cards will be approved. This effectively limits their ability to change jobs while the green card is pending. Currently, employees can transfer to a job that is the “same or similar” to their sponsored position after they have filed for adjustment of status. However, uncertainty regarding what constitutes the “same or similar” occupational category prevents many employees from changing jobs at the risk of losing their approved immigrant visa petition. USCIS will issue a policy memorandum to clarify what job changes constitute a “same or similar” job. Changes that will fit into the “same or similar” job criteria will  include accepting a promotion to a supervisory position and transitioning to related jobs in the same field.  
The preliminary actions described above will take shape over the course of the coming months through agency action. In the meantime, members of Congress are exploring strategies to stop executive action through legislation, spending cuts, and lawsuits. We will continue to monitor this evolving situation closely to provide you with the most up-to-date information on the effect that ongoing changes to our immigration system will have on businesses and foreign workers in the United States.
 

For more information about the information in this Bulletin, please contact vinh.duong@wallerlaw.com or nora.katz@wallerlaw.


The opinions expressed in this bulletin are intended for general guidance only. They are not intended as recommendations for specific situations. As always, readers should consult a qualified attorney for specific legal guidance.