President’s Executive Actions for U.S. Businesses and Highly Skilled Workers21 Nov 2014
President Barack Obama addressed the nation on November 20, 2014, in a televised speech to outline his proposed changes to immigration policies through executive action. These changes are part of a multi-pronged effort by the White House to make needed improvements by executive action to the current immigration system, without a legislative fix from Congress. To that end, U.S. Department of Homeland Security (DHS) Secretary Jeh Johnson has issued a memorandum to the U.S. Citizenship and Immigration Services (USCIS) and U.S. Immigration and Customs Enforcement (ICE), directing the issuance of policy revisions and regulations that will put into effect President Obama’s executive actions related to “supporting U.S. high-skilled businesses and workers.”
‘Executive Action’ Versus ‘Executive Order’
Executive action is a broad term that would include basically any type of action taken by the president. Some actions, such as directing an executive agency to make a regulatory change, take time to implement and must go through a formal process. An executive order, on the other hand, is a specific type of executive action; more precisely, it is a directive issued by the president that becomes the law of the land and is published in the Federal Register. An executive order generally can be implemented very quickly; an executive action that requires a change in regulations, as will be necessary for much of what President Obama is proposing to help businesses and high-skilled workers, tends to take longer to implement.
H-4 Employment Authorization Regulation
The USCIS will publish the long-awaited regulation allowing employment authorization for certain H-4 spouses. The memo states that the USCIS is about to publish this regulation, but does not give an exact timeframe. The best available information projects that the regulation will be published in December 2014 or January 2015 for publication.
F-1 Optional Practical Training Improvements
The memorandum directs ICE and the USCIS to review and improve the current optional practical training (OPT) program for F-1 students. Specifically, ICE is expected to propose regulations that would expand the degree programs eligible for STEM OPT extensions, and to extend the overall time period that STEM students would be eligible for OPT. ICE and the USCIS are also being instructed to “take steps to ensure that OPT employment is consistent with U.S. labor market protections to safeguard the interests of U.S. workers in related fields.”
Clarify the Meaning of “Specialized Knowledge” for L1B Cases
There are longstanding problems with how the USCIS inconsistently interprets and defines specialized knowledge in the context of adjudicating L1B, intracompany transferee petitions. This creates uncertainty for those multinational businesses that rely on this category to bring employees to the United States who possess skills and knowledge needed to conduct operations. To that end, the DHS is directing the USCIS to issue clear, consolidated guidance on the meaning of specialized knowledge.
Employment-Based Immigrant Visa System Improvements
The memorandum directs the USCIS to take steps to address the backlogs in visa number availability for employment-based (EB), permanent residence (green card) cases. It is important to note, however, that the visa number limits are set by law, and cannot be changed by a memorandum or executive order. According to the American Immigration Lawyers Association (AILA), the intention is to allow the filing of the adjustment of status (I-485) application, prior to the visa number becoming available. This would require regulatory changes and this option was not mentioned in the memorandum.
The USCIS and the U.S. Department of State (DOS) will continue to coordinate to ensure that all immigrant visa numbers are used each year. The DOS is responsible for controlling and issuing immigrant visa numbers. The DOS will be making improvements in the visa bulletin system, and USCIS regulations will need to be modified accordingly.
The USCIS is also being directed to carefully consider any other changes that would assist beneficiaries of approved employment-based visa petitions. The goal is to provide the foreign national beneficiaries with increased stability within the immigration process. This appears to mean reducing the individual’s dependence on a single employer, as the directive is to consider increasing the situations in which such petitions remain valid where there are job changes.
Promoting Research, Development, and Entrepreneurs
The USCIS is directed to implement two changes to enhance options for foreign investors, researchers, and entrepreneurs. First, the USCIS is to issue guidance or regulations addressing the national interest waiver (NIW) category, with the goal of facilitating and expanding use of this category for those who benefit U.S. interests. Second, the USCIS is to develop a program that will allow the temporary, paroled entry of certain inventors, researchers, and entrepreneurs to pursue their respective objectives from within the United States, prior to the point when such individuals may qualify for the NIW category.
Portability Enhancements and Clarity on “Same or Similar” Job
The memorandum also directs the USCIS to provide additional guidance on the meaning of “same or similar” occupational classification in the AC21 green card context. The goal is to reduce the uncertainty and fears that hold some qualified foreign nationals back from job opportunities and promotions.
Modernizing the Labor Certification Process
In a separate, but related action, the U.S. Department of Labor (DOL) has released a factsheet that details the agency’s plans to review and revise the PERM labor certification requirements and process. Key points include: identifying occupational shortages; modernizing recruitment requirements; case processing timelines and the possibility of premium processing; and addressing nonmaterial errors for filed cases. The goal is to bring the program into alignment with the needs of workers and employers, while still ensuring the purpose and integrity of the labor certification process.
What All This Means to You
What does this all mean for stakeholders who stand to benefit from these changes? That they should hope for the best and prepare, while understanding that no actual timelines have been established for the key immigration changes aimed at helping U.S. businesses, foreign investors, and skilled workers.
While this is a good reason to be excited about many of the changes proposed by President Obama, such as the ability of many H-4 spouses to finally be able to work, no actual deadlines have been established to implement all of these changes. Accordingly, the Murthy Law Firm recommends that, for the time being possible beneficiaries of these policy changes prepare by gathering relevant documents and information. For instance, an H-4 spouse may wish to gather evidence such as documents that demonstrate the maintenance of valid status, a marriage certificate, and proof of the H1B spouse’s approved I-140 petition. Individuals should also monitor the situation closely, by subscribing to the free MurthyBulletin or regularly checking MurthyDotCom to receive reliable immigration information provided by the professionals who know immigration matters!
The changes directed by the DHS are largely favorable and should help to address some of the problems commonly faced by employers and high-skilled workers, not to mention H-4 spouses who have long been waiting for the opportunity to work. The Murthy Law Firm is excited and optimistic about these changes, and MurthyDotCom will continue to provide updates and added details as these matters unfold.
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