The President's Executive Action on Immigration
Not surprisingly, most of the President's November 20th
executive action announcement on immigration covered the controversial area of illegal immigration. The use of prosecutorial discretion in deferring deportation of undocumented immigrants was expected but the President's actions also include a surprising number of policy improvements to employment-sponsored immigration. With the exception of the deferred action programs discussed below, however, most of these changes come without a specific timeline for implementation. The exact response from Republicans to all of this is still unknown but may include everything from legal action to defunding immigration enforcement to impeachment. Interestingly, Republicans filed their long-delayed lawsuit against the administration over the Affordable Care Act the day after the President's announcement on immigration.
In the interim, numerous policy memoranda have been published by the US Department of Homeland Security and other relevant agencies. The following is a brief summary of the major aspects of the President's executive action.
Deferred Action for Childhood Arrivals (DACA)
This is an expansion of a program introduced two years ago granting temporary relief from deportation through the use of prosecutorial discretion and employment permission to individuals who were brought to the US as children. The expansion of the program still provides only temporary relief to a larger but still limited portion of the undocumented immigrant community. The President's executive action now eliminates the age limit on the existing childhood arrival program (current age cap of 31 years old), advances the date for continuous physical presence in the United States to January 1, 2010 (rather than the current date of June 15, 2007) and extends deferred action and employment benefits to three years (from the current two years). The foreign national must still have entered the US before their 16th birthday and have no lawful immigration status, and must meet the other presence, as well as education and criminal offense, requirements. Implementation of the expanded DACA program will be 90 days from the date of the President's announcement.
Deferred Action for Parental Accountability (DAPA)
This new program provides deferred action and employment permission for three years to parents of US citizens or permanent residents (green card holders) who have been present in the US since January 1, 2010, as of the date of the President's announcement (November 20th
at the time of the DAPA request. Similar to DACA, the parental program is only available to those not currently in lawful status and who have not been convicted of certain crimes. The parental program will begin within 180 days.
Many of those currently present in the US actually have a viable path to green card and eventually US citizenship based on an existing family relationship. However, because of their undocumented status, current law subjects those potential applicants to three or ten year bars from those immigration benefits. Waivers are available but only in instances where applicants can establish that their removal would result in "extreme hardship" to the US citizen relative leading to unpredictable outcomes for applicants. Since 2013, certain unlawfully present persons have been able to file for waivers of the three and ten year bars before
leaving the US, rather than departing and processing the waivers in their home country. Currently this process only applies to spouses and children of US citizens. Through the President's executive action, the process will extend to other classes of relatives, including spouses and children of permanent residents and adult children of US citizens and permanent residents. Also expected is clarification of the factors constituting "extreme hardship,” such as family ties to both the US and the home country, conditions in the home country, age and health of the US citizen or permanent resident spouse or parent, financial issues and length of the foreign national's residence in the US. No specific timeline has been provided and will require the affected agencies to issue new guidelines and regulations.
While not mentioned by the President, it's worth noting that providing temporary relief and employment permission to an estimated five million previously undocumented workers will not go unnoticed by the business community. Balancing compliance with I-9 employment verification obligations and addressing an existing workforce that begins to produce new documents that are inconsistent with prior disclosures on immigration status will present interesting challenges. It will be important for employers to work closely with immigration counsel in determining how they can and should respond to these new circumstances in a way that maintains compliance with I-9 requirements and employment discrimination laws.
Employment Permission for H-1B Dependents
The President has directed U.S. Citizenship and Immigration Services to finalize a proposed rule published in May 2014 that would provide employment permission to the spouses of H-1B workers as long as the principal H-1B worker has an approved employment-based immigrant petition (critical step toward green card).
Modernize Employment-Based Green Card System
This change relates to creating greater accountability in the tracking and availability of unused immigrant visa numbers for green card issuance. As a result of the preference system in place for employment-based green cards, as well as per country limitations, immigrant visa or green card numbers go completely unused in some categories and are oversubscribed in others creating decade-long delays for green cards (particularly for foreign nationals from India and mainland China), which in turn creates additional burdens within the temporary visa system. Specifically, this provision calls for better coordination between USCIS and the US Department of State to avoid the loss of available visa numbers that go unused each fiscal year. Additionally, the President's directive calls for a streamlining of the Department of Labor's PERM labor market testing which is the path to employment-based green card for most foreign nationals.
Reform "Optional Practical Training" for Foreign Students and Graduates from US Universities
Foreign students are currently eligible for one year of post-graduate "optional practical training" employment permission and graduates of STEM programs are eligible for a total of 29 months of OPT (if they work for an E-Verify employer). This change calls for evaluation and extension of OPT in an effort to help retain highly-skilled foreign talent in the US while awaiting possible H-1B visa number availability. See our previous article
related to H-1B limits.
Promote Research and Development in the US
Current law and regulation provide little assistance to foreign entrepreneurs looking to develop their product or service in the United States. This provision calls for expansion of the underutilized "national interest waiver" path to green card through clarification of the program when applied to entrepreneurs and others promoting growth of the US economy. It also provides for the approval of temporary parole to certain qualifying foreign entrepreneurs, researchers and inventors 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." This temporary parole or permission to reside in the US would be granted for the purpose of promoting research within the US as opposed to abroad.
Bring Greater Consistency to L-1B Visa Program for Specialized Knowledge Workers
The L-1 visa program allows certain foreign nationals to transfer to the US following employment abroad with a related entity for at least one year. The L-1B program is for "specialized knowledge" workers which the administration recognizes has been subject to "vague guidance and inconsistent interpretation." New policy guidance is to be issued providing "clear, consolidated guidance" on the meaning of specialized knowledge.
Increase Worker Portability
Current law allows foreign nationals with pending green card applications to switch jobs and employers but only if the new position is the "same or similar." The President's executive action calls for more leniency in allowing employees to take advantage of job promotions without needing to start over in the green card process. Additional benefits may be available to foreign nationals with approved immigrant petitions who are precluded from finishing green card as a result of green card quotas but so far, the administration has not elaborated on those specifics.
If you have questions related to the President's executive action on immigration or other immigration matters, please feel free to contact Jenifer M. Brown
or another member of the firm's immigration practice
This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader must consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.