11.21.14
Last night, President Obama addressed the nation with a speech announcing executive actions that he would be taking to address the "broken" immigration system that we have. Shortly thereafter, each of the affected agencies issued memos which provided further details concerning the different executive actions. Some of these will take effect in a matter of months while most will require further regulatory action and agency review. As information is issued, Clark Lau LLC will help you plan for the changes that lie ahead. What follows is a broad overview of what to expect:
- Employment Authorization for Certain H-4s. Rules are in the works to allow spouses of certain H-1B individuals who are the subject of long-pending permanent resident applications to have employment authorization.
- L-1B Visas. Further guidance and clarification on the term "specialized knowledge," which is core to qualifying for the L-1B visa classification, will be forthcoming. About 50% of L-1 petitions filed with USCIS receive Requests for Evidence because of the inconsistencies among the different service centers on the interpretation of the "specialized knowledge" requirement for L-1B petitions.
- Optional Practical Training (OPT) Expansion. There will be rules to expand the time allowed on OPT for STEM (Science, Technology, Engineering, and Math) graduates and to include those whose first degree may have been a STEM degree and are now seeking OPT after a second non-STEM degree.
- "National Interest Waiver" (NIW) Program. Normally, when an employer sponsors an employee, it must test the labor market via a labor certification application. Certain advanced degree or exceptional ability individuals who can demonstrate that their work is in the national interest do not need to go through the labor certification process. USCIS has been directed to issue guidance or regulations to clarify the standards for qualifying for NIW given its underutilization.
- Parole for Inventors, Researchers, and Founders of Start-Up Enterprises. While certain individuals may not yet qualify for NIW, USCIS has been directed to grant parole to these individuals which would allow them to remain in the United States to pursue their research and development if they "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."
- Review of the PERM Process. Upon its tenth anniversary, the DOL will be taking a fresh look at the overall labor certification application ("PERM") process. Considerations include "modernizing" recruitment requirements for employers and the possibility of premium processing.
- Timing of Adjustment of Status Application Filing. Currently, even when an individual's employer has filed a Form I-140 immigrant petition on his/her behalf for permanent residency and it has been approved, the individual must wait for an available visa number before filing for an adjustment of status (Form I-485), which is the last step in the permanent resident process. There will be rules to allow an individual to file Form I-485, once the I-140 is approved. The benefit of this is that dependents may then apply for employment authorization. In certain circumstances, this may also mean not having to extend one's nonimmigrant visa while awaiting a visa number.
- Job Portability. Currently, those who are awaiting a visa number, and who have an approved Form I-140 and have a Form I-485 pending for more than 180 days, can switch employers and/or jobs so long as the position is of the "same or similar occupation" without jeopardizing the pending permanent resident process. There is going to be further guidance and clarification, and flexibility, as to how to determine whether jobs are "same or similar" to mitigate uncertainty in job portability.
- Visa Modernization. USCIS has been ordered to work with the State Department to ensure that none of the visa numbers available each year are "wasted." Due to the current practices, when some visa numbers become available, they are not properly issued/utilized and therefore go "wasted." These two agencies have been asked to review and revise their processes to ensure that the immigrant visa backlogs be addressed.
- Naturalization. To promote the naturalization process, individuals will be able to use credit cards to pay for the $680 filing fee. The government will also explore expanding fee waiver criteria.
- Expansion of Deferred Action for Childhood Arrivals (DACA). In June 2012, President Obama announced a program whereby certain qualified individuals who would have otherwise been deported would receive employment authorization for two-years at a time. He is now expanding this program to offer employment authorization for three-years at a time to those who entered the United States before the age of sixteen, who have been in the United States continuously since January 1, 2010, and who do not pose a national security or safety threat. Unlike in 2012, there is no upper age limit restriction. This takes effect 90 days from November 20, 2014.
- Deferred Action for Parents (DAP). As with DACA, the President is exercising his authority to defer the deportation of those individuals who are parents, as of November 1, 2014, of U.S. citizens or legal permanent residents, who have remained continuously in the United States since January 1, 2010, who do not pose a national security of safety threat, and who clear certain background checks. They may apply for employment authorization 180 days from November 20, 2014.
- Enforcement Priorities. While there are many people who are deportable, the government will prioritize its actions by focusing on those individuals who fall under the following categories: (1) Suspected terrorists, convicted felons, convicted gang members, and people apprehended on the border; (2) People convicted of serious or multiple misdemeanors, and very recent entrants (i.e., those who entered after 1/1/2014); (3) Those who, after 1/1/2014, failed to leave under a removal order or returned after removal.
- Increased border security efforts through a new "Southern Border and Approaches Campaign" will be in place.
- The "Secured Communities" program will be discontinued and replaced by "Priority Enforcement Program" (PEP). Secured Communities was a program created to identify and facilitate the removal of criminal aliens in the custody of state and local law enforcement agencies. This program has come under a lot of criticism and local authorities have refused to cooperate. Similar objectives will now be pursued under the new PEP where the federal government will seek to transfer only those who fall under a new set of enforcement priorities.
- The current immigration court system will experience reform concerning accredited representatives and ineffective lawyers.
- Expansion of offenses of which one is a victim will be added to the list for U and V visas eligibility.
- Collaboration of agencies is requested in terms of worksite enforcement activities to ensure that employers are in compliance with federal rules.
- I-601A Waivers are now expanded to include not only spouses and children of U.S. citizens, but also spouses and children of legal permanent residents. This is a vehicle by which individuals, who cannot adjust to permanent resident status in the United States and who may also face being denied an immigrant visa overseas at the U.S. Consulate, may ask that the government to waive their ground(s) of inadmissibility while they wait in the United States rather than wait outside of the U.S. and be separated from their families.
- Further clarification on when an individual may use the "Advance Parole" travel document in light of the court decision Matter of Arrabally will be issued. This concerns those individuals who have accrued unlawful presence in the United States and then depart with an Advance Parole document.
- Parole in Place will be granted to those families of individuals trying to enlist in the armed forces.
- There will be the creation of a task force on integrating New Americans.