President Obama has ambitiously announced several executive actions that have the potential to impact undocumented immigrants, as well as employers, foreign national workers, and their spouses. While these efforts are focused on administrative relief for undocumented immigrants who apply to remain in the United States, these executive actions potentially offer significant benefits to the employment-focused immigration community.
The following is an analysis of the potential benefits that may arise from President Obama's initiatives, which he announced on November 20, 2014.
- Expand "Deferred Action" programs. President Obama signed an Executive Order that offers certain undocumented immigrants the opportunity to apply for an employment authorization document, or EAD, which would allow them to work legally in the United States. The Department of Homeland Security ("DHS") would also agree not to remove the applicant during this period. Note: This three-year grant does not provide for any temporary immigration status, nor any pathway to a green card or citizenship.
- Extend work authorization to the spouses of H-1B visa holders.Currently, the spouses of H-1B workers (H-4 visa holders) are ineligible for employment. President Obama's plan notes that DHS will finalize new rules to allow for H-4 visa holders to work while waiting for their spouses’ green card applications to be approved.
- Enhance options for foreign entrepreneurs. Certain foreign entrepreneurs who conduct business that is in the "national interest" of the United States can apply for a green card. To encourage economic growth, the President announced that his immigration plans would expand the availability of this option for foreign entrepreneurs.
- Enhance options for employers of foreign workers. The proposal also reduces the backlog by eliminating annual country caps and adding additional visas to the system. DHS will also extend the use of "Optional Practical Training," a State Department program that allows for certain periods of work authorization while enrolled or for a short time following graduation.
- Clarify application processes that impact employers of foreign workers. The President's plan also calls for DHS to issue clear guidance on the L-1B specialized knowledge category and on AC21 "same or similar" adjustment portability, as well as for modernization of the Department of Labor's labor certification, or PERM, process.
- Improve the family-based immigration system. The President's plan also proposes raising annual caps on family-based green cards, which would reduce the wait times that qualifying family members face while waiting for their applications to be approved.
While the President's executive actions are likely to benefit employers and their foreign national employees and their families, in addition to those who are currently undocumented, a more permanent legislative solution is still very much in need. It is expected to be at least early 2015 for expansions of deferred action to take effect, and possibly several more months to implement and clarify the proposed regulatory changes and administrative guidance.