On November 20, 2014, President Obama announced new executive actions aimed at improving America’s immigration system. In the following days, he clarified the new policies and regulations via public announcement and executive agency memoranda. Although most press has focused on potential benefits for the undocumented population and the legality of the President’s actions, nearly every employer in the US will be affected and should be prepared to implement updated policies and practices to ensure employment verification compliance and shield themselves from potential liability for immigration discrimination claims.

The announced changes fall into three major categories:

  1. Increased border security and internal law enforcement against new illegal entrants and non-citizen criminals already inside the United States.
  2. Temporary relief from deportation through Deferred Action for two undocumented groups currently in the United States: (a) parents of US citizens and Lawful Permanent Residents (green card holders) and (b) individuals brought to the United States illegally as children, but who were too old to qualify for the 2012 Deferred Action for Childhood Arrivals program. In both cases, applicants will be required to undergo a background check and pay US taxes and approved individuals will be granted employment authorization.
  3. A series of discrete changes to the legal employment immigration system to increase mobility for highly skilled workers already legally inside the United States; attract foreign national entrepreneurs, researchers, and investors who may not qualify for existing visas; expand and extend current post-graduation employment authorization for graduates of US universities; clarify existing nonimmigrant visa requirements; and streamline the immigrant visa program.

This alert focuses mainly on the third category, employer impact and liability. All US companies must educate hiring and human resources staff to ensure non-discrimination in hiring of individuals under the new program. This includes potentially millions of new workers or current workers who may have previously used false information or documentation in the hiring process. 

Employment-Based Immigration Initiatives

The President’s Executive Order outlined the following initiatives related to highly skilled workers and employment-based immigration in general.

Green Cards: Currently, available immigrant visas go unissued due to a lack of coordination between USCIS and the Department of State. The President’s plan calls for USCIS to continue working with the Department of State to ensure that all immigrant visas authorized by Congress for a fiscal year are issued to eligible individuals when there is sufficient demand for such visas. This will ensure that visas do not go unused for any fiscal year. In addition, USCIS will work with the Department of State to improve the current system for determining immigrant visa availability during the fiscal year. The Department of State plans to modify its visa bulletin system to make such determinations simpler and more reliable. USCIS will also revise its current regulations to reflect and complement the proposed modifications. If these changes are implemented, it could result in advancement of visa priority dates. USCIS will also consider amending its regulations to ensure that approved, long-standing visa petitions remain valid in certain cases when a change of job or employer is being sought.

Changing Jobs While the Green Card Application is Pending: USCIS will issue a policy memorandum that provides additional guidance regarding the types of job changes that constitute a “same or similar” job under the I-140 portability provisions of the American Competitiveness for the 21st-Century Act (AC21). Pursuant to AC21, an approved I-140 employment-based immigrant petition shall remain valid when the foreign national changes jobs or employers, if the foreign national’s new job is in the same or similar occupational classification as the job for which the underlying immigrant petition was filed. At present, there is inconsistency among the various USCIS service centers and adjudicators when determining what qualifies as a “same or similar” job when a foreign national changes jobs while his/ her employment-based green card application is pending.

Expanding Optional Practical Training (OPT) for F-1 Students: The President’s plan proposes creating a new regulation to expand the degree programs eligible for the additional 17-months of Optional Practical Training beyond the initial 12-months. Currently, only F-1 students with degrees in science, technology, engineering and math (STEM) are eligible for the additional 17-month extension. The proposed new regulation will also extend the time period and use of OPT for current STEM graduates. The government also seeks to improve the OPT program by requiring stronger ties between F-1 students and their degree-granting institutions. This will better ensure that a student’s practical training furthers the student’s full course of study in the United States.

Ability to File an Application for Adjustment of Status to Permanent Residence Sooner: The President’s plan includes overhauling the way that the employment-based immigrant visa backlog is administered. Currently, there is a backlog in the availability of immigrant visas due to per country immigrant visa limitations. This means that individuals with an approved immigrant petition cannot file for adjustment of status applications unless an immigrant visa is available for their country of birth and priority date (date on which their labor certification or I-140 petition was filed). The goal of this overhaul is to allow individuals caught in the immigrant visa quota backlog to file for adjustment of status applications earlier, without having to wait for many years for an immigrant visa to become available. It will also allow the principal applicants and dependent family members to obtain the benefits of a pending adjustment, such as employment authorization and advance parole. This action will be achieved through regulation.

Employment Authorization for H-1B Spouses (H-4 visa holders): A new regulation expected to be finalized by December or January would allow H-1B spouses who are in H-4 visa status to obtain work authorization.

Guidance on Definition of Specialized Knowledge for L-1B Visa Petitions: For the past several years, restrictive and often inconsistent L-1B adjudications have been a major hindrance for employers needing to transfer critical specialized knowledge workers from abroad. One of the President’s initiatives is to finalize a new policy memorandum that is expected to offer clear guidance to both adjudicators and the business community on the definition of specialized knowledge, with the hope that it results in more reasonable adjudications and greater transparency. Agency sources indicate that publication of the memo may be imminent.

Foreign Entrepreneurs: USCIS will propose a program that will allow certain investors to be paroled into the US, or be granted parole in place if already in the US. The parole status will be given on a case-by-case basis, to inventors, researchers, and founders of start-up enterprises who may not yet qualify for a national interest waiver, but have been awarded substantial US investor financing, or hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research. This will be implemented through regulation. There are no further details at this time.

National Interest Waiver: USCIS is to issue guidance or regulations to clarify the standard by which a national interest waiver can be granted.

H-1B Cap: The White House has also stated informally that another change under consideration for employment-based immigration is clarifying which employers are exempt from the annual 65,000 visa quota for the H-1B specialty occupation visa. 

PERM: The Department of Labor (DOL) will review the current PERM foreign labor certification program and relevant regulations in order to modernize the PERM program. The DOL will be seeking input on the following:

  • Options for identifying labor force occupational shortages and surpluses and methods for aligning domestic worker recruitment requirements with demonstrated shortages and surpluses.
  • Methods and practices designed to modernize US worker recruitment requirements.
  • Processes to clarify employer obligations to insure PERM positions are fully open to US workers.
  • Ranges of case processing timeframes and possibilities for premium processing.
  • Application submission and review process and feasibility for efficiently addressing nonmaterial errors.

There are few details available at this time regarding implementation or prioritization of these employment-based initiatives. Thus far, the various agencies involved have only issued broad policy statements. In the coming weeks and months we expect agencies to issue specific directives and publish regulations that include more details regarding eligibility and procedures for implementation.