President Obama’s Executive Action Relating to Business and Family Immigration
President Obama’s Executive Action Relating to Business and Family Immigration – November 21
President Obama announced a new executive action item on immigration on Thursday, November 20, 2014. We have compiled the most relevant information below in order to help you understand what this executive action means. If you have any questions about these items, please contact our office.
It is expected that DHS will issue guidance on the definition of specialized knowledge, possibly by December or January.
Revisions to Adjustment of Status
USCIS will propose regulations to amend the process for allowing individuals who are the beneficiaries of approved employment-based immigrant adjustment, hopefully by spring with a final rule by the of 2015. The new adjustment regulations would reflect revisions to how the State Department uses the Visa Bulletin. Allowing more sponsored workers to file for adjustments gives workers and their families portability and allows employers to make employment, promotion and assignment decisions without worrying about being within the confines of the long-ago filed Labor Certification. This will not be a “pre-registration” process since a regular I-485 Adjustment will be filed and it will not be “early filing” because the Visa Bulletin will permit the filings.
In the spring the Administration is expected to publish proposed rules that would: (1) Increase the number of years that STEM graduates can remain in the US under post-completion optional practical training (OPT); this would be for F-1 students who are earning degrees at US universities in STEM fields, and (2) Allow individuals whose first college degree is in STEM but second degree (like MBAs with undergraduate engineering degrees) to also qualify for STEM OPT. Additionally there may be a proposal to recognize dual intent for F-1 students in this same NPRM, however this remains undecided. It is likely the proposed rule will require that the post-completion relationship will be strengthened between F-1 students and their universities. Lastly, it is possible that the STEM field list may be expanded which can be done by U.S. Immigration and Customs Enforcement (ICE) under its current regulation.
There will be policy guidance issued that will allow “researchers, inventors, and founders” to qualify for a National Interest Waiver under the Employment-Based Second Preference category. Currently it is unclear how much this will help existing companies who are creating new jobs in research and development. Additionally, a regulation will be promulgated identifying criteria that entrepreneurs might satisfy to either be granted parole-in-place (if they are already here) or to be paroled into the US. Note that individuals in the US under parole may not adjust status in the US to green card through Employment-Based preferences, but could adjust status through family immigration.
Department of Homeland Security (DHS) is hoping to publish a final rule in December or January regarding work authorization for spouses of H-1B workers being sponsored for green cards. Currently it is unknown whether the final rule will be more broad than the NPRM (Notice of Proposed Rulemaking) published in May 2014.
PERM regulation will be revised
The Department of Labor (DOL) will go through a process to streamline the PERM process, by regulation.
Presidential Memorandum on visa modernization
A “PM process” will begin with a timeline of 120 or 180 days to further consider recapture and various other issues, including small but meaningful changes to a variety of immigration procedures and rules at the Departments of Commerce, Education, State, Agriculture and Homeland Security, along with SBA.
Interagency cooperation on worksite enforcement
U.S. Immigration and Customs Enforcement (ICE) will work more closely with the Department of Labor (DOL) regarding worksite enforcement, as l as better cooperation between ICE worksite enforcement and the Department of Justice (DOJ) (Office of Special Counsel,) the US Equal Employment Opportunity Commission (EEOC) and the National Labor Relations Board (NLRB).
Deferred Action for Parents (DAP)
Parents of U.S. citizens and lawful permanent residents (of any age) who have been continuously present the US since January 1, 2010, who pass a background check and pay taxes, will be eligible to apply for Deferred Action for Parents (DAP). DAP will be granted for a three (3) year period and the plan is for applications to be accepted within 180 days. Note: parents of DACA recipients are not eligible simply because of their status as parents of DACA recipients.
Expansion of DACA
Deferred Action for Childhood Arrivals (DACA) will be revised to eliminate the age cap and to change the date that continuous presence must have started to January 1, 2010. DACA will also be granted for three (3) years, including those with pending renewal applications. This should be ready in 90 days.