This month in United States immigration news, the Obama Administration is forging ahead with its plans for administrative reforms to the U.S. immigration system, despite the passage of a Homeland Security spending bill that contains provisions to de-fund executive action on immigration by the House of Representatives, and a hearing in the federal district court filed by 25 U.S. states challenging executive action.
On November 20, 2014, President Obama announced a package of immigration reforms called the Immigration Accountability Executive Action (Executive Action). These reforms will influence all major parts of the immigration system, and will no doubt make significant changes for undocumented aliens as well as business immigration practices.
Below, we have provided a summary of some important changes as provided by and encourage you to contact us directly to discuss the details:
Deferred Action for Parents (DAPA). Parents of US Citizens and lawful permanent residents (of any age) who have been continuously present in the U.S. since 01/01/2010, and who pass background checks and pay taxes will be eligible for deferred action, which will give them work permits for 3 years. The applications will be filed starting from May 2015.
Expansion of Deferred Action for Childhood Arrivals (DACA). DACA will now be available to all qualified immigrants without an age limit (previously the age limit was 31), who have been in the U.S. since 01/01/2010. The employment authorizations will be also granted for 3 years, not 2 years (including those with pending renewal applications).
Foreign Entrepreneurs. Certain investors will be paroled into the U.S., or be granted parole in place if already in the U.S., for job creation. This will be done by regulation. US Department of Homeland Security (“DHS”) will begin rulemaking to identify the conditions under which talented entrepreneurs should be paroled into the United States, on the ground that their entry would yield a significant public economic benefit.
There is discussion about “parole-in-place” for inventors, researchers, and founders of start-up enterprises. This program can permit DHS to grant “parole” 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 who have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.” Parole in this type of circumstance would allow these individuals to temporarily pursue research and development of promising new ideas and businesses in the United States, rather than abroad. This regulation will include income and resource thresholds to ensure that individuals eligible for parole under this program will not be eligible for federal public benefits or premium tax credits under the Health Insurance Marketplace of the Affordable Care Act.
National Interest Waivers. Researchers, inventors, and founders will be eligible for national interest waivers to promote research and development in the United States. This will be implemented through policy guidance. The “National Interest Waiver” (NIW – a self-sponsoring green card category) allows qualified foreign nationals with advanced degrees or exceptional abilities to seek lawful permanent resident status if their work is in our “nation’s interest”. This waiver is underutilized and there is limited guidance with respect to its invocation. One Memorandum compels the US Citizenship and Immigration Services (“USCIS”) to issue guidance clarifying the standard by which an NIW may be granted and specifically how it can apply to inventors, researchers, and founders of start-up enterprises, with the aim of benefiting the U.S. economy.
Timing of Filing for Adjustment of Status. The ability of individuals with an approved employment-based immigrant petition who are caught in the quota backlogs to file for adjustment of status will be advanced to permit them to obtain the benefits of a pending adjustment. Accordingly, EB-3 beneficiaries will be eligible to receive their work and travel permits much earlier. This part of the President’s administrative relief article series focus more on the changes to allow for speedy immigration processing [to decrease priority date backlogs] and to increase the flexibility of business immigration processes. Pre-registration will be available to allow people adjustment of status benefits when an I-140 is approved but no priority date is available (estimated to benefit 410,000). This will be done by regulation.
L-1B. Multinational companies have been suffering to transfer their “Specialized Knowledge” employees to their offices in the U.S. because of inconsistent interpretation of the term “Specialized Knowledge” by the USCIS while adjudicating L-1B petitions. The USCIS is now required to issue a policy memorandum to provide clear guidance on the meaning of “Specialized Knowledge” in order to improve consistency in adjudications of L-1B petitions.
H-4 EADs. The long-awaited regulations for work permits for certain H-4 spouses will soon be finalized in 2015.
OPT. Students who are STEM (Science, Technology, Engineering, Math) graduates will have an expanded OPT and the relationship between the student and the school will be strengthened for this period. Other changes are under consideration too, such as allowing STEM OPT post-master’s degree where only the first degree is in a STEM field is under consideration. One other consideration is that developing regulations to expand the degree programs eligible for OPT. These changes will be done by regulation.
AC21. “Same or Similar” position will be clarified so that adjustment of status applicants with pending cases for more than 180 days can port their employment easier to a same or similar position with a different employer.
PERM. A full rulemaking will be undertaken to modernize the 10-year-old PERM program and make it more responsive to change in the national workforce.
Visa Modernization. There will be a Presidential Memorandum directing the agencies to look at modernizing the visa system, with a view to making optimal use of the numbers of visas available under law. Issues such as whether derivatives should be counted and whether past unused visa numbers can be recaptured will be included in this effort.
Integration. A second Presidential Memorandum will set up a Task Force on New Americans.
We will release more information once the other programs are being implemented after the appropriate guidance and regulations are issued. With the recent executive orders that touch on a wide range of issues – including strengthening border security, revising removal priorities, encouraging investment, and promoting family unity – President Obama has set in motion a long-awaited reform of the US immigration system. We hope that this momentum will continue and lead to a complete overhaul of the immigration system by the Congress, which is consistent with today’s economic realities and is intended once again to put the U.S. at the forefront of growth and innovation.
For more information about the ways that the President’s recent announcement about Administrative Relief may be beneficial to your business or your staff, please feel free to contact Sevil Ozisik.