President Barack Obama’s announcement on 20 November 2014, regarding executive action that he plans to take on immigration reform, has put into motion a number of changes to US immigration law in 2015 that could be significant. While Congress moves to block the President’s actions, as well as to introduce its own reform legislation, and many states challenge the executive action, other major legislative and regulatory developments are taking place that immigration attorneys will be watching.
Revisions to Adjustment of Status
Adjustment of Status is the process by which individuals who have been sponsored for permanent residence by a family member or employer can apply to become a permanent resident. New adjustment regulations would reflect revisions to how the State Department uses the Visa Bulletin, as well as accelerate the period when the Adjustment of Status applications can be submitted. Currently, an individual cannot file for Adjustment of Status until a visa number is available. The President’s executive action would allow an individual with an approved immigrant visa to apply for Adjustment of Status despite the fact that a visa number is not available, which would provide benefits to them and their families, including greater flexibility in employment and travel. It will also become easier for foreign workers to switch employers.
Currently, a foreign worker who is being sponsored by an employer cannot switch employers without their new employer sponsoring a new and expensive green card process until the Adjustment of Status has been pending for 180 days, and then only if the new position is in the same, or a similar position, to the sponsored position. The President’s guidance directs the US Citizenship and Immigration Services (USCIS) to issue better guidance on what constitutes “same or similar” positions.
Easing of demand on H-1B visas
The H-1B visa category is essential to many businesses that wish to employ foreign nationals in professional positions. Each year, the government makes 65,000 new H-1B visas available (this limit is commonly referred to as the “H- 1B cap”) for individuals who have not recently, or who have never held H-1B status. The actual number of visas available under the cap is lower because of set-asides for certain countries under Free Trade Agreements. Further, under the advanced degree exemption, an additional 20,000 H-1B numbers are available for individuals who have obtained a US Master’s degree or higher. For Fiscal Year 2015, which began on 1 October 2014, USCIS received more than twice as many H-1B applications than there were visas available, and for Fiscal Year 2016 (USCIS will accept petitions from 1 April 2015), the demand is expected to be higher. Both President Obama and Congress have taken steps to ease this demand.
Sciences, Technology, Engineering or Mathematics (STEM) students
The STEM Program allows foreign graduates in Sciences, Technology, Engineering or Mathematics to obtain longer periods of post-graduate work authorisation if they go to work for employers who participate in the government’s E-Verify program. The original STEM program allows for an additional 17 months of employment authorisation. The Administration is expected to publish proposed rules in the spring that would:
- increase the number of years that STEM graduates can remain in the US under post-completion optional practical training (OPT) — this would be for students on F-1 visas earning degrees at US universities in STEM fields, and
- allow individuals whose first college degree is in STEM, but whose second degree is not (such as MBAs with undergraduate engineering degrees), to also qualify for STEM OPT
The Department of Homeland Security expects to publish a final rule shortly regarding work authorisation for the spouses of H-1B workers being sponsored for green cards. This would allow certain spouses of individuals with H-1B work authorisation to obtain work authorisation cards that are not restricted (i.e. they can apply for jobs anywhere). As the permanent residence process can take four to ten years for some sponsored foreign workers, this would be a significant benefit for their spouses, who otherwise would need to obtain their own H-1B visas, or would have to wait until the end of the process to seek employment in the US.
Senate Bill would raise H-1B cap
A new bipartisan Senate Bill, the Immigration Innovation (I-Squared) Act, would initially raise the H-1B cap from 65,000 visas per year to 115,000. Thereafter, the cap would be adjusted according to demand, to a maximum of195,000 visas and a minimum of 115,000.
PERM Regulations to be revised
PERM Labour Certification is the way employers will typically sponsor a foreign worker for permanent residence. It is done through the Department of Labour and has not been updated for approximately ten years. The President’s executive action calls for the Department to streamline the PERM process and, perhaps, to allow it to work through a significant backlog of cases and reduce the processing time to less than six months.
Clarification of specialised knowledge for L-1B visa program
Under the L-1B Visa Program, multi-national employers may transfer workers to the US if they have “specialised knowledge” needed in the US. USCIS has long taken a narrow, and sometimes inconsistent, view of what constitutes “specialised knowledge”, making it difficult for employers to use this category. However, two developments in 2014 could change this.
A federal appeals court in Washington DC rejected the USCIS’s determination that L-1B “specialised knowledge” cannot be “inherent knowledge a person gains as a result of his or her upbringing, family and community traditions, and overall assimilation to one’s native culture necessarily falls into the realm of general knowledge.” The ruling could broaden the range of professionals eligible for these visas. In addition, in response to the President’s executive action, USCIS has stated that it will issue clear, consolidated guidance on the meaning of “specialised knowledge.”
Promoting research, development and entrepreneurs
Policy guidance will be issued allowing “researchers, inventors and founders” to qualify for National Interest Waivers (“NIW”) under the Employment-Based Second Preference category. The goal is to expand the use of the category for foreign nationals whose work will benefit the US. In addition, USCIS will develop a program to permit such individuals to enter the US temporarily to pursue these activities prior to obtaining the NIW.
Inter-agency cooperation on worksite enforcement
US Immigration and Customs Enforcement’s coordination with the Department of Labour regarding worksite enforcement will be strengthened. Better cooperationamong ICE worksite enforcement, Department of Justice (Office of Special Counsel), the National Labour Relations Board, and the Equal Employment Opportunity Commission will also be addressed. Increased coordination and cooperation is expected to lead to more workplace nvestigations.
John L. Sander is a Shareholder in the New York office of Jackson Lewis P.C.