Executive Action – On Employment-Based Proposals

EXECUTIVE ACTION – ON EMPLOYMENT-BASED PROPOSALS

On November 20, 2014, President Obama announced an executive action to refocus Immigration enforcement priorities on promoting family unity and helping U.S. Employers hire and retain foreign workers. Some of the proposed changes will be implemented over the next several months and others will take longer to implement. The responsible agencies are not yet ready to receive or process any applications.

In a policy affecting up to 5 million unauthorized immigrants now in the U.S., the President authorized the expanded use of deferred action to provide temporary protection from removal through (1) changes in the current Deferred Action for Childhood Arrivals (DACA) program and (2) a new Deferred Action for Parental Accountability (DAPA) program. Both the new DAPA and expanded DACA programs provide temporary relief from removal with work authorization for up to three years.

Specifically, the administration will modify DACA to eliminate the current age ceiling of 31, making the program available to people who came to this country before turning age 16 and who have been continuously residing in the U.S. since January 1, 2010. The expansion of DACA should be available within 90 days. The new DAPA program will provide deferred action to unauthorized parents of a U.S. citizen and permanent resident as of November 20, 2014 if they have been in the country since January 1, 2010 and they are able to pass a background check. DAPA should be available within 180 days.

Beyond this expanded use of deferred action to protect unauthorized immigrants from removal, the Executive Action also includes proposed measures that more directly impact U.S. employers and authorized foreign workers. The DHS Secretary issued a memorandum with new policies intended to support U.S. employers in hiring and retaining foreign workers, provide workers with greater job mobility, and give foreign students expanded opportunities to gain on-the-job training. Through formal guidance or regulations, U.S. Citizenship and Immigration Services (USCIS) will:

  • Work with the Department of State (DOS) to improve systems used to determine available immigration visas, ensuring that all immigrant visas made available by Congress are actually issued during the fiscal year.
  • Work with the DOS to modify the visa bulletin system to “more simply and reliably make determinations of visa availability,” and to issue regulations to reflect and complement these proposed modifications.
  • Impacting up to 410,000 individuals, a part of these regulations will enable individuals with approved employment-based immigrant petitions who are now caught in the quota backlogs to file for adjustment of status and to get the benefits of a pending adjustment, including employment authorization and advance parole travel authorization.
  • Publish the final rule on H-4 employment authorization by January 2015. This   regulation will provide work authorization for spouses of H-1B employees pursuing employment-based permanent residence who have approved I-140 petitions or are otherwise eligible for extension of their authorized period of admission under AC21.
  • Through a separate regulation, reform “Optional Practical Training” for F-1 foreign students and graduates of U.S. universities. This would be done by expanding the degree programs eligible for OPT and extending the time period and use of OPT for STEM (science, technology, engineering, and mathematics) students, including by allowing a STEM OPT extension after a master’s degree if only the first degree falls within a STEM field.
  • Provide “clear, consolidated guidance for companies on the meaning of ‘specialized knowledge’” for deciding L-1B visas for intra-company transferees.
  • Issue policy guidance for increased flexibility on the types of job changes that are considered a “same or similar” job that permit applicants for employment-based permanent resident status to change jobs during processing delays, clarifying that promotions and taking related jobs in the field are permitted.
  • Provide expanded opportunities for foreign investors, researchers, and entrepreneurs to conduct research and development that create jobs in the U.S.

While the expansion of DACA and DAPA has received the most attention, other employment-based initiatives to be implemented will also have a significant impact on immigration policies. Details are coming.

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