First Take on the “Immigration Accountability Executive Action”
Last night, President Obama announced a number of sweeping changes to the current immigration system. While everyone was expecting deferred action expansion, the proposed employment immigration changes, especially the introduction of pre-registration for adjustment of status, could have a great impact for employers. The following information is subject to change after final documents are released and programs and guidelines are put in place; however, the following is a basic summary for your information.
Legal Immigration Reforms
Pre-registration will be made available to allow adjustment of status benefits, including work authorization, when immigrant visa eligibility is approved but no priority date is available for such a visa. It appears that this will be done by regulation, so it may be some time before it is in place. In addition, for those with pending adjustment of status applications, the “same or similar” portability language, allowing them to change employment during the adjustment process, will be made more user friendly.
A Presidential Memorandum directing the various immigration-related agencies to modernize the visa system, with a view to making optimal use of the visas available under law, is also to be released. Issues such as whether derivatives should be counted towards the visa quota and whether past unused visa numbers can be recaptured are expected to be included but no clear results or goals were discussed.
The current labor certification process, the PERM process, is to be modified to make cases “move more easily.” The rulemaking process may modernize the PERM labor certification program and may include a harmless error provision. Further, the national interest waiver category for immigrant visas will be broadened through issued guidance to include foreign inventors, researchers and founders of start-up enterprises and clarify the standard by which such a waiver may be granted to benefit the U.S economy.
The authorized period of work authorization currently allowed through Student Optional Practical Training is to be lengthened and broadened for STEM graduates, which is helpful if the cap on H visas is not increased. The regulation to provide work authorization to the spouses of certain H-1B visa holders who are on the path to lawful permanent resident status is also to be finalized, perhaps early in 2015. Changes to the L visa program for “specialized knowledge” are also directed.
Using advance parole to enter the US will no longer trigger inadmissibility and “Parole-in-Place” will be expanded to certain entrepreneurs and enlistees in the military and their families. Parole-in-Place will be expanded to eligible inventors, researchers, and founders of start-up enterprises who may not yet qualify for a national interest waiver, but who 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. Waivers available for certain unlawful presence in the US under INA section 601(a) waivers will be expanded to lawful permanent resident spouses and the “extreme hardship” standard will be modified by an expansion and clarification of the current definition.
Unfortunately, changes to the H-1B visa program, including easing affiliation and quota rules, “cap gap” relief for doctors and teachers, and easing of rules governing who has “direction and control” of the H worker, were not included. None of these changes will go into effect until the agencies issue guidance and/or regulations.
Deferred Action Expansion
Parents of US citizens and lawful permanent residents will now be eligible for deferred action if they have been present since January 1, 2010 and have five years of total presence in the US. Applicants will be subject to background checks. Deferred Action for Childhood Arrivals (DACA) will be expanded by elimination of the upper age cap, allowing people of any age to apply if they meet the other requirements. The physical presence date will advance to January 1, 2010 from June 15, 2007.
Both of these initiatives will provide deferred action for three years. The expanded DACA should be up and running in 90 days and deferred action for parents (DAP) in 180 days. It appears that applications for both will likely be accepted beginning in the spring of 2015.
Enforcement
A new interagency memorandum will be released that sets out new enforcement priorities divided into three groups: serious threats (suspected terrorists, felons and gang members as well as recent entrants (people who entered after 2013)), significant misdemeanors and multiple misdemeanors, and people who ignored removal orders and reentered the US after 2013. Individuals who do not fit in to these groups will be eligible for prosecutorial discretion. In addition, the Secure Communities program will be replaced by the Priority Enforcement Program, under which ICE can put a request in for a local law enforcement agency to detain an individual but detention will no longer be automatic.
A presidential memo will be issued and a task force created to make the above changes into working programs. Our understanding is that details (and memos) are still being finalized and will be released in the coming hours, days, weeks, and months. More changes may result when the actual memoranda and regulations are issued. Further, some of the above items will be immediate, while others will be phased in. However, until firm guidance is issued by the respective agencies, it does not appear that any of these changes are currently effective.
In other words, stay tuned…