President Obama Announces Executive Action on Immigration Reform

In a November 21, 2014 televised address, President Obama announced that he will be using his executive powers to make changes in U.S. immigration policy that will address some of the flaws in the current system. The following are items that may affect McCown & Evans clients.

Improving the Immigrant Visa System

Immigrant Visas (also referred to as green cards) are subject to numerical quotas and many people face a long waiting period to receive final approval. The President has directed U.S. Citizenship and Immigration Services (USCIS) and the Department of State to improve on this system in several ways:

1. Adjustment of Status Improvements

The President’s proposal will allow individuals with approved employment-based petitions (Form I-140) who are waiting for their immigrant visa category to become current to file adjustment of status applications (Form I-485) as long as their immigrant visa category is not considered “unavailable.” This fixes a major problem under the current system that prevents individuals with an approved employment-based immigrant petition (I-140) from filing for adjustment of status until a green card is ready to be issued. The benefit of filing an adjustment of status application is that it allows the individual to change jobs if certain criteria are met and allows the individual to be promoted without having to restart the entire process. In addition, dependent family members would qualify for interim work authorization and travel documents while waiting for green card approval.

2. Visa “Modernization”

The President also directed the agencies to modernize the visa system to ensure the optimal use of available immigrant visas under current law. The details of this planned modernization have not been decided, but the two ideas that have long been considered to help reduce green card backlogs include recapturing unused green cards from prior years and exempting spouses and children for visa counting purposes. If either or both of these ideas are implemented then we would expect significantly reduced waiting times for green cards.

We expect the above proposals for improving the immigrant visa system to be published first in the Federal Register and it is unclear at this point how long it will take for the new rules to take effect.

H-4 Spousal Employment

Earlier this year, the Obama administration proposed a rule that would permit employment authorization for certain H-4 spouses of H-1B workers in the latter stages of the green card process. The President pressed for completion of this rule and there is some hope that it will be expanded to allow for more liberal work authorization for H-4 spouses.

Extension of STEM OPT

The President directed the agencies to extend the length of time a STEM (science, technology, engineering and math) graduate may remain in the United States in OPT status beyond the 29 months allowed under current law. He also directed the expansion of the number of degree programs eligible for OPT. A change in regulations is necessary to implement these reforms so these rules will not take effect for many months.

L-1B Specialized Knowledge Clarification

The L-1B is an intra-company transferee visa used for employees who possess specialized or advanced knowledge specific to the employer. For the past several years, USCIS has applied an extremely restrictive definition of “specialized knowledge,” which has greatly limited the use of the L-1B visa. President Obama directed that new L-1B guidance be released that will reverse this trend and allow for more liberal use of this work visa.

Options for Entrepreneurs:

One glaring shortcoming of the current U.S. immigration system is the absence of a pathway for many foreign entrepreneurs to come to the United States. Currently, entrepreneurs are required to create a corporate board structure that enables the use of current visas such as H-1Bs. This means that they are required to give up autonomy to a corporate board, which might not otherwise be optimal for the business. Also, there are a very limited number of H-1B visas available, which further limits the options for entrepreneurs. While the details of this plan are not yet clear, the President’s program would allow certain inventors, researchers, and founders of start-up enterprises to be “paroled” into the United States (or be granted “parole in place” if already in the United States) if they show they have a certain amount of investment funding.

In addition to the new parole procedures, USCIS will also issue a new regulations or guidance to clarify that inventors, researchers, and founders of start-up enterprises are eligible to obtain a national interest waiver, which is an immigrant visa category that can lead to green card approval.

Deferred Action for Parental Accountability (DAPA)

The Department of Homeland Security (DHS) will create a deferred action program for the undocumented parents of U.S. citizen or lawful permanent resident children born on or before November 20, 2014. Deferred action is a type of administrative relief from removal which allows a non-U.S. citizen to remain in the U.S. temporarily. A person who is granted deferred action may apply for an employment authorization document for the period of deferred action. However, at this time deferred action does not provide a path to a Green Card.

To qualify under DAPA, parents must have lived in the United States continuously since January 1, 2010 or earlier. They must also show that they were in the United States both on November 20, 2014 and on the date that they apply for deferred action. Deferred action will be granted for three years. Over four million people are estimated to be eligible to apply for this program. USCIS should be ready to receive DAPA applications within 180 days of the announcement.

Expansion of Deferred Action for Childhood Arrivals (DACA)

DHS will expand the pool of DREAMers (people brought to the United States as children) who are eligible for the DACA program that was first created in June 2012. Under the expanded program, individuals are eligible if they entered the country before January 1, 2010, can demonstrate continuous presence in the United States since then, and were under the age of 16 at the time they entered. When first established, DACA required that individuals be under the age of 31 at the time of application, but the new program has no current age limit. The expanded DACA program will now grant deferred action for three years. Previously DACA granted deferred action for two year periods. Initial DACA applicants and those renewing their status will be eligible for a three-year grant of deferred action and work authorization. About 300,000 individuals will be eligible for this expanded version of DACA. USCIS should be ready to receive applications under the new DACA program within 90 days of the announcement.

Conclusion

Please note that the above provisions are not effective immediately. The government will release updates and guidance over the next several months, at which time we will inform you of any changes. Please contact your attorney at McCown & Evans with any questions.

 

Disclaimer

This information is for general use only. You should consult a licensed attorney for legal analysis and advice regarding the specific details of your case