President Barack Obama has announced he will take executive action to expand the population of currently undocumented individuals who will be allowed to remain and work legally in the U.S.
While there were few details in the President’s November 20, 2014, televised address to the nation, key initiatives of the President’s Immigration Accountability Executive Actions include:
- Expansion of Deferred Action for Childhood Arrivals (DACA): Currently, certain individuals who arrived in the United States as children are eligible for DACA protection and corresponding employment authorization. The announced executive action will expand the pool of individuals eligible for the DACA program and extend the period of DACA status and corresponding employment authorization from two years to three years.
- Creation of Deferred Action for Parents (DAP): This new program will allow parents of U.S. citizens and lawful permanent residents (of any age) who have been continuously present in the United States since January 1, 2010, and who pass background checks and pay taxes, to be eligible to apply for deferred action and corresponding employment authorization. DAP status and employment authorization will be for a three-year period.
Estimates are that up to five million currently undocumented individuals may be eligible for Deferred Action. As individuals granted Deferred Action will be eligible for work authorization, employers must be particularly cautious in addressing current employees who may come forward under these initiatives.
The President also announced new efforts to increase the responsiveness of the employment-based legal immigration system to the needs of employers. These efforts include:
- Employment Authorization for H-1B Dependents: Currently, H-4 dependents of holders of H-1B nonimmigration visas are precluded from employment. U.S. Citizenship and Immigration Services (USCIS) will finalize and promulgate a rule to provide work authorization to the spouses of certain H-1B visa holders who are on the path to lawful permanent resident status (i.e., nonimmigrants who possess an approved I-140 Immigrant Petition for Alien Worker or a pending labor certification application and are currently in the sixth year of H-1B status).
- Expansion of Optional Practical Training (OPT) for Foreign Students and Graduates from U.S. Universities: Currently, students enrolled in a science, technology, engineering, or math (STEM) academic degree program may gain practical training work authorization for 17 months in addition to the 12-month period typically available for post-graduate practical training employment. New regulations will expand and extend the use of OPT for foreign students, consistent with existing law. This potentially would include students whose initial degree is in a STEM field, but who are studying in a non-STEM field (e.g., in a Master’s program) and are not currently covered by the STEM training program.
- Greater Consistency in the L-1B Visa Program: For years, employers have sought guidance and clarity regarding the definition of “specialized knowledge” employees under the L-1B nonimmigration program to better assess their prospective employees’ qualifications and prepare petitions accordingly. USCIS has stated that it will issue clear, consolidated guidance on the meaning of “specialized knowledge” as early as this year or the beginning of 2015.
- Increasing Worker Portability: USCIS will issue guidance with respect to the types of job changes that constitute “same or similar” jobs under current law. It also will remove unnecessary restrictions on natural career progression and general job mobility to provide relief to workers facing lengthy adjustment delays. Similarly, the adjustment process for individuals who are the beneficiaries of approved I-140 Immigrant Petition for Alien Worker will be amended by regulation so the sponsored worker is eligible to file for adjustment of status sooner, allowing worker portability while also giving employers needed flexibility to make employment, promotion, and assignment decisions outside the strict limitation of a Labor Certification often filed years earlier.
While it will be months before many of the initiatives will be fully implemented, employers should begin preparing for these changes now, including inquiries from employees regarding the impact of these far-reaching executive actions.