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President’s Executive Actions for U.S. Businesses and Highly Skilled
Workers
November 21, 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.
http://www.murthy.com/2014/11/21/presidents-executive-actions-f
Workers
November 21, 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.
http://www.murthy.com/2014/11/21/presidents-executive-actions-f
