On November 20, 2014, President Obama announced a series of measures that will overhaul the U.S. immigration system through executive action and administrative reform. Following the President’s address, the Department of Homeland Security (DHS) and the Department of Labor (DOL) published directives that include the following initiatives affecting employers:
- USCIS will provide employment authorization and advance parole benefits to individuals whose immigrant petitions have been approved but who are unable to file adjustment of status applications due to lengthy backlogs in the availability of employment-based immigrant visas. This will enable improved job mobility and remove restrictions on career progression while waiting for an immigrant visa to become available. A proposed rule for this change is expected to be released in Spring 2015 and finalized by the end of 2015.
- USCIS will work with the Department of State (DOS) to improve the Visa Bulletin system and make more efficient determinations about immigrant visa availability and distribution.
- DOL will review the Program Electronic Review Management (PERM) program and regulations to modernize the system and become more responsive to changes in the national workforce. This review is anticipated to be completed by Spring 2016.
- USCIS will issue a policy memorandum that provides clear guidance on the meaning of “specialized knowledge” to bring greater coherence and consistency to the L-1B visa program.
- USCIS will provide spouses of certain H-1B workers who have begun the process of applying for permanent residence with the ability to obtain work authorization. The rulemaking process for this change is anticipated to be completed by January 2015.
- The Optional Practical Training (OPT) program that allows foreign nationals studying in the United States to gain employment experience will be evaluated to expand the number of degree programs that are eligible and extend the period of time that students can work. Immigration and Customs Enforcement (ICE) will be charged with ensuring that OPT programs have a stronger connection to the student’s course of study.
- USCIS will issue a policy memorandum to provide clarity with respect to what job changes qualify as being within the “same or similar” occupation. This will enable employment-based adjustment of status applicants greater certainty in accepting promotions or transitioning to other employers while their applications
- USCIS will develop a standard for granting national interest waivers under the employment-based second preference (EB-2) immigrant visa category to foreign inventors, researchers and founders of start-up enterprises who have obtained substantial investor financing or the prospect of creating jobs.
- A federal interagency working group comprised of national security, employment, immigration enforcement and worker protection agencies will be formed with the objective of developing and enforcing consistent labor, employment and immigration laws.
Other significant initiatives included in the President’s executive actions include:
- The expansion of the Deferred Action for Childhood Arrivals (DACA) program to young people who came to the United States before turning 16 years old and have been present since January 1, 2010. DACA was previously limited to individuals who had been present in the country since June 15, 2007. Deferred action and work authorization for these individuals will be increased from two years to three years.
- Providing parents of U.S. citizens and lawful permanent residents who have been in the United States since January 1, 2010 with the ability to apply for deferred action and employment authorization. This will allow certain undocumented immigrants to stay and work in the country for a three year period without being subject to deportation.
These initiatives will not take immediate effect. They will be implemented by USCIS and other federal agencies over the next several months after new guidance and regulations are issued. The directives include changes that appear to provide greater flexibility and options for employers of foreign national workers but their overall impact will not be apparent until new rules are proposed and further details of the affected programs are published. The President’s announcement also included a statement that these initiatives could be halted if Congress passes immigration reform legislation. Further updates will be provided when information becomes available.
If you have any questions regarding this update, please contact one of the following Sidley lawyers:
Timothy G. Payne
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