On November 20, 2014, President Obama 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authorization for certain H-4 nonimmigrants, reforming the employment-based immigration visa system, reviewing the outdated Permanent Labor Certification (“PERM”) program and modernizing the visa numerical control system.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
In May 2014, the Department of Homeland Security (“DHS”) released a proposed rule that would allow certain H-4 dependents to obtain employment authorization. The period of public comment for the proposed rule ended in July 2014. 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
- Granted an extension of their authorized period of stay in the United States based on a pending application for permanent residency.
As part of President Obama’s executive action, certain H-4 dependents will be permitted to obtain work authorization. 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
The executive action 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. Pursuant to these benefits, the worker may:
- Seek a promotion from their current position;
- Change jobs or employers if certain criteria are met; and
- Obtain employment authorization and travel permission for dependent family members.
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.
The Department of Labor, which oversees the PERM program, has been directed to issue guidance aimed at reforming the labor market test to reflect modern recruitment practices. No deadline has been issued for this directive.
Modernizing the Visa Numerical Control System
The executive action directs 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 President Obama by March 20, 2015.
Importantly, this executive action 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.