On November 20, 2014, President Obama announced a series of executive actions to reform parts of the U.S. immigration system, including providing temporary protection from deportation for nearly five million people. We note that none of these measures have immediate effect and they all require implementation by the relevant agency(ies), with expected timeframes in some cases of up to six months.
Under the new policies announced, the Obama Administration will expand the current Deferred Action for Childhood Arrivals program, and will create a new deferred action program to provide temporary relief for the parents of U.S. citizens and lawful permanent residents. The president also announced new enforcement policies and steps to support highly skilled workers and entrepreneurs, expand certain options for foreign students, improve the adjudication of business and family visas, and implement enforcement priorities focused on deporting felons instead of family members. The president has indicated that he will continue to work with Congress on a comprehensive, bipartisan bill that can replace these individual actions. A summary of the new policies follows below:
Support Highly Skilled Business and Workers:
The U.S. Department of Homeland Security (DHS) will take a number of administrative actions to better enable U.S. businesses to hire and retain highly skilled foreign-born workers and strengthen and expand opportunities for students to gain on-the-job training. In particular, DHS U.S. Citizenship and Immigration Services (USCIS) will take the following actions:
- Reform “Optional Practical Training” for Foreign Students and Graduates: The president has instructed USCIS and U.S. Immigration and Customs Enforcement (ICE) to take the following steps to evaluate, strengthen, and improve the “optional practical training” (OPT) program, which allows foreign nationals studying in the U.S. in F-1 status to extend their time in the U.S. for temporary employment in the relevant field of study: (i) develop regulations for notice and comment to expand the degree programs eligible for OPT and extend the time period and use of OPT for foreign science, technology, engineering, and mathematics (STEM) students and graduates (USCIS and ICE may consider allowing a STEM OPT extension post-master’s degree where only the first degree is in a STEM field); (ii) require stronger ties to degree-granting institutions to better ensure that a student’s OPT training furthers the student’s full course of study in the U.S.; and (iii) take steps to ensure that OPT employment is consistent with U.S. labor market protections to safeguard the interests of U.S. workers in related fields.
- Clarify the “National Interest waiver” Standard for Employment-Based Second Preference (EB-2) Green Card Category and Introduce Revise Parole as an Option Rules for Foreign Entrepreneurs to Enter the United States Temporarily: USCIS will implement the following administrative improvements to enhance opportunities for foreign investors, researchers, and founders of start-up enterprises wishing to conduct research and development and create jobs in the U.S.: (i) clarify the standard by which an EB-2 “national interest waiver,” which permits certain foreign nationals non-citizens with advanced degrees or exceptional ability to seek U.S. permanent resident (“green card”) status without employer sponsorship if their admission is in the national interest, can be granted; and (ii) begin rulemaking to identify the conditions under which foreign investors, researchers, and founders of start-up enterprises, should be “paroled” into the U.S. (i.e. allowed to enter temporarily without a specific visa category), on the ground that their entry would yield a significant public benefit. Such parole would be authorized on a case-by-case basis to eligible investors, researchers, and founders of start-up enterprises who may not yet qualify for a national interest waiver, but who have been awarded substantial U.S. investor financing, or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research. In addition, parole-in-place will be expanded to include families of individuals trying to enlist in the armed forces, and DHS will issue guidance to clarify when someone is given “advance parole” to leave the country.
- Greater Consistency to L-1B Program: USCIS is expected to issue a policy memorandum providing clear, consolidated guidance on the meaning of “specialized knowledge” to bring greater clarity and integrity to the L-1B program for foreign workers who transfer from a company’s foreign office to its U.S. office, improve consistency in adjudications, and enhance companies’ confidence in the program.
- Increased Worker Portability: USCIS will issue a policy memorandum that provides additional agency guidance and clarity on adjustment portability to remove unnecessary restrictions on natural career progression and general job mobility to provide relief to workers facing lengthy adjustment delays. In addition, USCIS will clarify the meaning of “same or similar” jobs for purposes of AC21 permanent “portability” under current law, and make it clear that promotions to supervisory positions and transitions to related jobs in the field of endeavor are permitted.
- Employment Authorization for Spouses in H-4 Status: USCIS is expected to publish a final rule on H-4 employment authorization for spouses of H-1B workers by January 2015.
- Modernize Employment-Based Immigrant Visa System: The ability of individuals with an approved employment-based immigrant petition (which sets forth basis for a green card), or “green card”, who are caught in the quota backlogs to file for adjustment of status will be advanced to permit them to obtain the benefits of a pending adjustment. The president has directed USCIS to work with the Department of State to: (i) develop a method to allocate immigrant visas to ensure that all immigrant visas authorized by Congress are issued to eligible individuals when there is sufficient demand for such visas; (ii) modify the Visa Bulletin system to more simply and reliably make determinations of visa availability; and (iii) consider amending regulations to ensure that approved, long-standing visa petitions remain valid in certain cases where they seek to change jobs or employers (it remains to be seen whether this regulation will go beyond the statutory provisions of AC21 that deal with “I-140 portability” but for which no regulations have been issued since its enactment).
Expand Deferred Action for Childhood Arrival (DACA): Under the initial DACA program, eligibility was limited to those who were under 31 years of age on June 15, 2012, who entered the U.S. before June 15, 2007, and who were under 16 years old when they entered. DACA eligibility will be expanded to cover all individuals born prior to June 15, 1981, (removing the upper age restriction of 31), provided they have had continuous residence in the United States since January 1, 2010 and meet the other requirements. Going forward, DACA relief will be extended to a period of three years from the current two years. The new three-year time period will apply to pending DACA renewal applications, and USCIS is exploring options to extend previously issued two-year work authorization documents to the three-year period. This expansion will go into effect approximately 90 days following the president’s November 20, 2014 announcement.
Deferred Action for Parents of U.S. Citizens and Legal Permanent Residents: DHS is establishing a new Deferred Action for Parental Accountability (DAPA) program for individuals who: (i) have a U.S. citizen or legal permanent resident (LPR) son or daughter of any age as of November 20, 2014; (ii) have been continuously present in the U.S. since before January 1, 2010; and (iii) were physically present in the U.S. on November 20, 2014 and are present at the time of requesting DAPA. Parents may request temporary relief from deportation and work authorization for three years at a time if they come forward and register, submit biometric data, pass background checks, pay taxes and fees, and show that they are parents of a U.S. citizen or LPR born on or before November 20, 2014. This program will go into effect approximately 180 days following the president’s November 20, 2014 announcement.
Beneficiaries of the president’s executive actions will gain temporary legal status and will be eligible for driver’s licenses, Social Security cards, and work authorization. In addition, individuals in legal status may be eligible to apply for in-state tuition and state scholarships in many states.
Expand Provisional Waivers to Spouses and Children of Lawful Permanent Residents: DHS is expanding the I-601A provisional waiver program announced in 2013, which allows spouses and children of U.S. citizens and parents of adult U.S. citizens who can demonstrate extreme hardship to a U.S. citizen spouse or parent to apply for a provisional waiver. USCIS will “expand access to the provisional waiver program to all statutorily eligible classes of relatives for whom an immigrant visa is immediately available,” which could include any family-based preference category beneficiary with an approved I-130 and a current priority date who can demonstrate “extreme hardship” to a citizen or LPR spouse or parent. DHS will also clarify the “extreme hardship” standard that must be met to obtain the waiver.
Modernize the PERM Program: The U.S. Department of Labor (DOL) will review methods and practices to modernize the PERM program (which represents the first stage in most employment-based "green card" cases), including worker recruitment requirements, the possibility of premium processing, and the feasibility of addressing non-material errors without denial.
Promote Access to U.S. Citizenship: To promote access to U.S. citizenship, DHS will take the following steps: (i) permit the use of credit cards as a payment option for the naturalization fee; (ii) conduct a fee study to explore a partial waiver program for the naturalization fee; and (iii) expand citizenship public awareness.
Department of Labor Certification of U and T Visas: In early 2015, the DOL Wage and Hour Division will begin certifying T visa applications for trafficking victims, and will expand its existing U visa certification program by adding three additional qualifying criminal activities: extortion, forced labor, and fraud in foreign labor contracting.
Visa Modernization: The president will issue a Presidential Memorandum directing agencies to look at modernizing the visa system to improve nonimmigrant and immigrant visa proceedings, reduce government costs, eliminate redundant systems, reduce burdens on employers and families, modernize the information technology infrastructure underlying the visa processing system, and eliminate fraud.
Enhanced Enforcement Priorities and Border Security: The president announced a series of steps focused on the removal of threats to national security, border security, and public safety, as well as the implementation of a new priority enforcement program. Specifically, on November 20, 2014, the secretary of DHS issued a new DHS-wide memorandum outlining the department’s enforcement priorities and prosecutorial discretion policy, clarifying that the government’s enforcement activities should be focused on: (i) threats to national security, border security, and public safety; (ii) misdemeanants and new immigration violators; and (iii) other immigration violations. The new memorandum rescinds and supersedes several previously issued memoranda, and states that DHS “must” exercise prosecutorial discretion in the enforcement of the law. The new guidance will take effect on January 5, 2015. DHS will create a new Priority Enforcement Program to remove those convicted of criminal offenses and identify and remove federal criminals serving time. In addition, in furtherance of a “Southern Border and Approaches Campaign Strategy” that was first announced on May 8, 2014, DHS has commissioned three Joint Task Forces to coordinate and better use resources at the border and improve border security without impeding travel.
These policies and initiatives have not yet been implemented. USCIS is primarily responsible for implementing these initiatives, and is expected to produce detailed explanations, instructions, regulations, and forms as necessary in the coming months. For additional information regarding these policies, please click here