HOW MAY PRESIDENT OBAMA’S EXECUTIVE ACTIONS AFFECT LEGAL EMPLOYMENT BASED
IMMIGRATION?
Fact: President Obama announced on November 20, 2014 that he will be issuing the “President’s
Immigration Accountability Executive Actions” Order (“Order”).
Fact: The Order addresses several concerns: Cracking Down on Illegal Immigration at the Border;
Deporting Felons, Not Families; Accountability – Criminal Background Checks and Taxes; and
Streamlining Legal Immigration.
This article will only address the President’s directives on “streamlining legal immigration”. While each
element of the President’s actions is critical, we address only the employment-based legal immigration
issues in this article.
The full text of the various fact sheets and memoranda quoted through this article can be found and
read in their entirety at www.dhs.gov.
A sub-section of the “Executive Actions” at the website states: “Support High-skilled Business and
Workers
DHS will take a number of administrative actions to better enable U.S. businesses to hire and retain
highly skilled foreign-born workers and strengthen and expand opportunities for students to gain onthe-job training. For example, because our immigration system suffers from extremely long waits for
green cards, we will amend current regulations and make other administrative changes to provide
needed flexibility to workers with approved employment-based green card petitions.
•
Executive Action: Support High-skilled Business and Workers “
It is important to commence this commentary or this sharing of thought-process with a disclaimer:
There is much that is unknown and unclear as to how any of the directives will be or are intended to
be implemented. Processes and timelines are yet to be announced. While there seems to be some
directive as to whether an action should be promulgated through regulation or through an internal
memorandum, that may be subject to change.
We will need to “wait and watch” to see how this entire body of “executive actions” develops and
evolves. It will take time to fall into place – we just don’t know how long. The impact of each action
will also be determined over an undefined period of time.
And then, of course, there is the question of what the incoming Congress may do to enact new and
hopefully comprehensive immigration reform to a much broken system. Will this President’s
Executive Order impel the Congress to act, as so sorely needed? Will 2016 bring a new President who
may dilute or nullify the intended impact of President Obama’s Executive Action?
Clarity and applicability of forthcoming regulations and / or memorandum may well be subject to
litigation, appeals, motions and other options that vary with the facts of each case.
Questions abound, with few answers!
Reproduced below are relevant comments from the “Fact Sheet” that was released by the DHS on
November 20, 2014 (highlights have been added):
1. Providing portable work authorization for high-skilled workers awaiting LPR status and their
spouses. Under the current system, employees with approved LPR applications often wait
many years for their visa to become available. DHS will make regulatory changes to allow
these workers to move or change jobs more easily. DHS is finalizing new rules to give certain
H-1B spouses employment authorization as long as the H-1B spouse has an approved LPR
application.
2. Enhancing options for foreign entrepreneurs. DHS will expand immigration options (probably
through policy guidance) for foreign entrepreneurs who meet certain criteria for creating jobs,
attracting investment, and generating revenue in the U.S., to ensure that our system
encourages them to grow our economy. The criteria will include income thresholds so that
these individuals are not eligible for certain public benefits like welfare or tax credits under
the Affordable Care Act.
3. Strengthening and extending on-the-job training for STEM graduates of U.S universities. In
order to strengthen educational experiences of foreign students studying science, technology,
engineering, and mathematics (STEM) at U.S. universities, DHS will propose changes (probably
through regulation) to expand and extend the use of the existing Optional Practical Training
(OPT) program and require stronger ties between OPT students and their colleges and
universities following graduation.
4. Streamlining the process for foreign workers and their employers, while protecting American
workers. DHS will clarify its guidance on temporary L-1 visas for foreign workers who transfer
from a company’s foreign office to its U.S. office. DOL will take regulatory action to modernize
the labor market test that is required of employers that sponsor foreign workers for
immigrant visas while ensuring that American workers are protected.
5. Reducing family separation for those waiting to obtain LPR status. Due to barriers in our
system, U.S. citizens and LPRs are often separated for years from their immediate relatives,
while they wait to obtain their LPR status. To reduce the time these individuals are separated,
DHS will expand an existing program that allows certain individuals to apply for a provisional
waiver for certain violations before departing the United States to attend visa interviews.
6. Ensuring that individuals with lawful status can travel to their countries of origin. DHS will
clarify its guidance (probably through policy guidance) to provide greater assurance to
individuals with a pending LPR application or certain temporary status permission to travel
abroad with advance permission (“parole”).
7. Issuing a Presidential Memorandum on visa modernization. There are many ways in which our
legal immigration system can be modernized to reduce government costs, eliminate redundant
systems, reduce burdens on employers and families, and eliminate fraud. The President is
issuing a Memorandum directing an interagency group to recommend areas for improvement.
It is thought that the much awaited and anticipated changes/clarifications to the L-1B visa category may
further narrow the present interpretation of “specialized knowledge”. While consistent adjudications
continue to be the bane of the applicability of the L-1B “specialized knowledge” category, a new,
narrower interpretation will only further stymie international operations and transfers. Corporations,
executives, individuals and the professionals who deal with the L-1B visas anxiously await this promised
guidance.
Some other salient highlights of the Executive Order that may or may not affect “legal immigration”
directly:
1. Timing for filing Adjustment of Status applications. Individuals with approved employment
based immigrant petitions will be able to file the adjustment of status application despite visa
availability backlogs, and will be able to avail the benefits of a pending adjustment application.
This is expected to be done by regulation. This is also expected to impact about 410,000 people.
2. AC 21. Clarification of “same or similar” for portability purposes.
3. PERM. A full rulemaking will be undertaken to modernize the PERM program. It has just
celebrated its 10th anniversary. This is an integral part of the President’s Memorandum on Visa
Modernization.
4. Enforcement Priorities. Three identified groups:
a. Suspected Terrorists, convicted felons, convicted gang members, and people
apprehended on the border;
b. Individuals convicted of serious or multiple misdemeanors , and very recent entrants
(i.e., those who entered after 1/1/14);
c. Those who, after 1/1/14, failed to leave under a removal order or returned after
removal.
5. Border Security. “Command and control” campaign for border control.
6. Two deferred action initiatives that may benefit upto an estimated 4.4 million people:
a. Deferred Action for Parents (DAP) who meet qualifying criteria;
b. Expansion of DACA.
7. Pending proceedings. Review cases to “close” cases that fall within established guidelines for
“removal” proceedings.
8. Worksite Enforcement. DOL will coordinate with other agencies as deemed appropriate.
We encourage and invite you all to stay tuned to our FLG newsletter for more and continuous updates
on the President’s Executive Order.