Executive Summary

President Obama recently announced the Immigration Accountability Executive Action, a series of steps directed toward reforming the United States' immigration system.  Although the media's attention has primarily focused on provisions relating to deferred action for unauthorized persons, the measures also contain several initiatives aimed at improving the nation's employment-based immigration system.  These initiatives, which can be found here and here, include granting employment authorization for certain H-4 nonimmigrants, reforming the employment-based immigration visa system, reviewing the outdated Permanent Labor Certification ("PERM") program and modernizing the visa numerical control system. 

Employment Authorization for Certain H-4 Nonimmigrants

Currently, spouses of H-1B nonimmigrant workers holding H-4 status are prohibited from working in the United States.  This may cause economic hardship for families affected by the visa backlog, as many H-1B workers often wait years for immigrant visa numbers, during which time their H-4 spouses are prevented from engaging in employment. 

In May 2014, the Department of Homeland Security ("DHS") released a proposed rule that would allow certain H-4 dependents to obtain employment authorization.  Specifically, the rule permitted H-4 dependents to seek employment authorization if the principal H-1B nonimmigrant worker was either the beneficiary of an approved immigrant petition or had been granted an extension of their authorized period of stay in the United States based on a pending application for permanent residency.  The period of public comment for the proposed rule ended in July 2014.  At this time, it is unclear whether the executive action will modify the DHS's proposed rule or whether the final rule will be published without additional revisions.  This initiative is projected to impact approximately 97,000 individuals currently holding H-4 status and 30,000 individuals each year thereafter.

  • A final rule is expected in December 2014 or January 2015.

Reforming the Employment-Based Immigrant Visa System

In the employment-based permanent residency process, significant visa backlogs prevent certain foreign workers from submitting an application for a green card until a visa number becomes available, which may take years depending on the individual's country of birth.  During the waiting period, these workers must generally remain in the same position with the same employer to avoid jeopardizing their pending permanent residency.   In addition, they must rely on temporary nonimmigrant status to maintain ongoing permission to remain and work in the United States.

The executive initiative establishes a "pre-registration" system for foreign workers seeking a green card.  Specifically, workers with an approved immigrant petition will be able to pre-register to obtain the benefits of a pending adjustment of status application while waiting for a visa number to become available.  This will allow workers to seek promotion from their current position or even change jobs or employers if specific criteria are met during their waiting period.  In addition, this would allow their family members to apply for employment authorization and travel permission.  This initiative is projected to impact approximately 410,000 individuals.

  • U.S. Citizenship and Immigration Services has been directed to issue guidance and regulations to implement this initiative, but no deadline has been placed on this directive.

Reviewing the PERM Program

The current  PERM program for hiring foreign workers requires the sponsoring employer to obtain certification that there are not sufficient U.S. workers available to accept the job opportunity in the area of intended employment.  The process for certification requires employers to test the labor market by utilizing several recruitment practices that may not be reflective of real world recruitment.  In addition, there has been inconsistency in the adjudication of PERM applications.

  • The Department of Labor ("DOL"), which oversees the PERM program, has been directed to issue guidance aimed at reforming the labor market test to reflect modern recruitment practices.  The DOL will initiate a review of the PERM program and seek input from stakeholders to align the current program with the needs of the U.S. immigration system.  No deadline has been issued for this directive.

Modernizing the Visa Numerical Control System

In 1990, Congress established a numerical limit on the number of green cards that may be issued each year to applicants for permanent residency.  Under the current visa system, some applicants face multi-year waiting periods in their categories while many visa numbers go unused in other categories.

As part of the executive action, a Presidential Memorandum was issued directing immigration agencies to develop recommendations for improving the current visa number system.  The goal of this initiative is to reduce the backlogs by modifying the method in which the government accounts for visa numbers.  While the details of this measure have not been determined, two possible ideas for reducing wait periods are recapturing unused visa numbers from prior years and exempting dependent spouses and children from the numerical limitation placed on the number of green cards issued each year.

  • The Departments of State, Commerce, Education, Agriculture and Homeland Security, together with the Small Business Administration, have been directed to work with the White House and Attorney General to provide recommendations to the President by March 20, 2015.

Practical Takeaways

These initiatives may affect the way employers formulate immigration sponsorship strategies, maintain I-9 compliance and prepare for worksite enforcement measures.  However, until these initiatives are implemented, the full effect remains unclear.