On November 20, President Obama announced that he will be shortly issuing a sweeping Executive Order that will provide relief to a large number of undocumented immigrants and will also facilitate the hiring and retention of skilled workers. As the business immigration related provisions are of great interest to you, here are the highlights:
“Pre-Registration” for Adjustment of Status: Under current law, individuals with approved employment-based immigrant petitions (I-140s) must wait until their priority dates are “current” before filing their adjustment of status applications. As a result, individuals in the second and third employment-based preference categories who are natives of countries with large quota backlogs (most notably India or China) must often wait many years before being able to file their adjustment of status applications. The President’s action will allow the “pre-registration” filing of adjustment of status applications as soon as the I-140 petition is approved. This change will allow applicants to obtain the valuable benefits of a pending adjustment of status application (work and travel authorization, and possible employment portability) while they wait for their numbers to become current.
H-4 Spousal Employment: The Department of Homeland Security (DHS) has been directed to finalize a rule permitting employment authorization for H-4 spouses of H-1B visa holders who are in the process of applying for permanent residence. More details will become available within the next several months.
Expansion of STEM OPT: Students with U.S. degrees in the science, technology, engineering and math (STEM) fields will be eligible for extended periods of post-graduate Optional Practical Training (OPT) beyond the current 29 months following graduation. In addition, the fields of degree study eligible for OPT will likely be expanded.
L-1B Specialized Knowledge Clarification: Very restrictive interpretations of the term “specialized knowledge” by U.S. Citizenship and Immigration (USCIS) and State Department adjudicators has long frustrated employers seeking to transfer critical employees from offices abroad. To correct this problem, the President has directed the finalization of a new USCIS policy memorandum that is expected to offer clear guidance to both adjudicators and the business community on the meaning of “specialized knowledge.” The memorandum should improve consistency and the approval rate of L-1B adjudications.
“Same or Similar” Occupations: Current law allows workers whose employment-based adjustment of status applications have been pending for more than 180 days to change jobs without jeopardizing their permanent residence cases, but only if the new job is in a “same or similar” occupational classification as their old job. However, “same or similar” in this context has never been defined, causing uncertainty for many employees (and likely dissuading many of these employees from changing employers – or even accepting promotions – for fear that such action might jeopardize their permanent residence cases). To help eliminate this uncertainty, USCIS will issue a policy memorandum providing additional guidance with respect to the types of job changes that constitute “same or similar” employment.
Facilitating Entry of Entrepreneurs: One of the President’s proposals directs USCIS to propose a program that would permit DHS to grant “parole” (to allow into the country) inventors, researchers, and founders of start-up enterprises, to enable them to pursue the research and development of promising new ideas and businesses here, rather than abroad. In addition, USCIS will issue new guidelines liberalizing the standard for a grant of a National Interest Waiver to make it easier for inventors, start- up entrepreneurs, and other persons to qualify for permanent residence on this basis.
PERM Labor Certification Process: The Department of Labor will be initiating a review of the PERM program and relevant regulations in order to determine how the program can be streamlined so that cases can be processed and approved on a smoother and faster basis.
In a White House briefing immediately prior to the President’s speech, White House aides also advised that the Executive Branch was looking at ways to “recapture” unused immigrant visa numbers from years past and at the possibility of not counting dependent family members in the 140,000 annual employment-based immigrant quota. If that change is made, this could effectively more than double the availability of immigrant visas in the EB-2 and EB-3 categories.
The President has also proposed a number of changes designed to provide relief from removal for certain undocumented immigrants. Most notably, the President has ordered that certain undocumented parents of U.S. citizens and lawful permanent residence will be eligible for “deferred action” (relief from removal from the country or from entering into removal proceedings) and be eligible for temporary work and travel permission, provided they have resided in the U.S. for at least five years. The President also announced that he would seek to expand the Deferred Action for Childhood Arrivals (DACA) program to cover all undocumented immigrants who entered the U.S. before the age of 16, provided they entered the U.S. before January 1, 2010.
We expect that additional information about these and other executive actions will be announced in the coming weeks and months.