On November 20, 2014, President Obama announced certain executive actions on immigration. The media has focused on the actions that affect the millions of immigrants that are here without documentation. There are several aspects, however, that will affect employers who may seek work authorization for foreign-born workers.
Green Card Status:
The executive branch may promulgate regulations allowing individuals with an approved employment based visa petition (otherwise known as a I-140 petition) to file an application for a green card immediately, regardless of whether there is an available visa. Currently, a foreign national must wait “for their place in line” to come up before they can file an application for a green card. The process then could take many more months before approval. Allowing for pre-filing would shorten the amount of time for final approval of the green card petition.
The executive branch has also requested that the Department of Labor come up with a plan to “modernize” the “PERM” or “labor certification application” program; which is the first step to advertise a job as a part of the green card application process.
There also will be steps taken to improve the ability of workers to move to other “same or similar” jobs while petitions are pending and to make it clear that some promotions will be acceptable.
Spouses of H-1B Holders:
Currently, those in the U.S. in “H-4 status,” specifically the spouses of employees in H-1B status, are not permitted to work. The government anticipates finalizing regulations that would allow those certain spouses in H-4 status to obtain employment authorization, but only if they have an approved visa petition (i.e., an approved I-140 petition). However, we would caution foreign nationals and their employers that they should not rely on this information, or take any action based upon it, as there could be delays or changes.
Students; Practical Training:
Foreign nationals here in student status (known as “F-1”) are allowed limited periods of time of lawful employment subsequent to being granted their degrees, referred to as Optional Practical Training (“OPT”). Currently, those in STEM (Science, Technology, Engineering and Math) fields are granted additional time for OPT. The executive branch has directed that government agencies develop regulations that expand the degree programs eligible for additional OPT and extend the amount of OPT time granted to STEM graduates. Further, the executive branch has directed government agencies to require stronger ties to degree-granting institutions to ensure that a student’s practical training furthers the student’s full course of study.
L-1B: Intercompany Transferees:
L-1B status, by regulation, can be granted to employees who have been working for the foreign branch of a U.S. company for at least one year and have “specialized knowledge” relevant to the position. The Department of Homeland Security has so far given very vague guidance and inconsistent interpretations of the term “specialized knowledge”, and the executive branch has ordered that the immigration service provide “clear and consolidated” guidance related to the term “specialized knowledge.”
There presently is in place a Deferred Action for Childhood Arrival (DACA) program, which would apply to immigrants who came to the U.S. when they were under the age of 16, have resided here since June 2007, were under 31 years of age as of June 2012, and were not convicted criminals. They also would have to be a high school graduate or still attending school. Now, the DACA cutoff date will be January 2010, and still apply to anyone who was brought here under the age of 16. Those individuals can apply for temporary relief and work authorization.
Ultimately, none of the actions described above are, as yet, final. Where additional or reversed regulations are called for, the delay could be measured in months, if not years. Particularly with the current political landscape in Washington, we would caution employers and their employees that the timelines, and plans outlined by the President, may change or be delayed. Additionally, please keep in mind that even with the current workload, there can be significant delays in processing various petitions. The potential impact of processing large numbers of additional petitions is unknown. We will keep you updated as to any significant developments that may affect your employees or potential employees moving forward.