In his Nov. 20, 2014 address, President Obama announced his plan to exercise executive action to reform the nation’s immigration system. Please note that these changes do not take effect immediately. Some are intended to be implemented within the next several months and others later.
We will continue to provide updates regarding the business immigration-related changes as we become aware of them. The following is a general overview of the President’s announced executive actions, which consists of several initiatives including the following:
Enhancing options in the U.S. for foreign inventors, researchers and entrepreneurs
Propose a program to authorize parole, pursuant to the “significant public benefit” parole provisions, on a case-by-case basis, to eligible foreign 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 vision for innovation and job creation through development of cutting edge technologies or research. Parole in this instance would allow foreign entrepreneurs to temporarily pursue research and development of new ideas and businesses in the U.S.
The National Interest Waiver permits certain foreign nationals with advanced degrees or exceptional ability to seek permanent residence in the U.S. without employer sponsorship if their admission is in the national interest. President Obama has directed United States Citizenship and Immigration Services (USCIS) to issue policy memorandum or regulations to clarify the standard by which the waiver can be granted to thereby promote its greater use.
Extension and expansion of optional practical training for foreign students
Expand degree programs eligible for Optional Practical Training (OPT) and extend the time period and use of OPT for foreign students and graduates majoring in the fields of Science, Technology, Engineering and Mathematics (STEM). This initiative would also require stronger ties between graduates and degree-granting institutions to ensure that the foreign students’ OPT furthers their course of study.
Foreign nationals studying in the U.S. under the F-1 visa, may request twelve (12) additional months of F-1 status for OPT, which allows them to temporarily work in the U.S. in their relevant field of study. Additionally, foreign students majoring in STEM fields are eligible for an additional seventeen (17) months of OPT for a total of twenty-nine (29) months, so long as their employer is enrolled in the E-Verify program.
Achieving greater clarity to the “Intracompany Transferee” L-1B “Specialized Knowledge” classification
Provide clear and consolidated guidance on the meaning of “specialized knowledge” in order to bring greater coherence to the L-1B program in order to ensure consistent adjudication of these petitions and to strengthen companies’ confidence in the L-1B program.
The Intracompany Transferee (L-1) classification is intended to expand U.S. exports, enhance competitiveness in foreign markets, and aid multinational companies in the transfer of executive, managerial, and specialized knowledge personnel to the United States for temporary employment.
Achieving greater clarity for worker portability
Issue clearer guidance as to what type of job changes constitute a “same or similar” job under current law, in the hopes that by removing unnecessary restrictions current foreign workers will have increased confidence in accepting promotions, changing employers, or transitioning to a related job.
Currently, employment-based permanent resident applications that have been pending for more than 180 days will remain valid with respect to a new job if the individual changes jobs or employers if the job is in a “same or similar occupational classification” as the job for which the petition was filed.
Providing work authorization to spouses of H-1B workers who are in the permanent resident Process
Allow spouses of H-1B workers, who are in the permanent resident process, to apply for employment authorization.
Currently, spouses of H-1B beneficiaries may not work in the United States unless they are the beneficiary of an approved petition, filed on their behalf that has granted a non-immigrant classification that authorizes employment.
Improvement to the employment-based Immigrant visa system
With regards to the backlog for employment-based immigrant visas, the President directed USCIS to work with the Department of State to develop a method to allocate all immigrant visas authorized by Congress to eligible individuals when there is a demand for such visas and to modify the visa bulletin system to better determine visa availability. These changes will take effect upon the issuance of further guidance and regulations.
Naturalization
To promote and increase access to U.S. citizenship for the millions of lawful permanent residents in the U.S. through the naturalization process, the President directed USCIS to accept credit cards as a payment option for the naturalization fee, to consider partial fee waiver in certain cases and to expand citizenship public awareness.
Expansion of Deferred Action for Childhood Arrivals (DACA)
DACA, which provides deferred action relief and employment authorization for individuals who enter the U.S. as children, will be expanded to encompass a broader class of children. The relief provided by this program, including work authorization, will be extended to three years. USCIS expects this plan to go into effect approximately 90 days following the president’s Nov. 20, 2014 announcement.
Deferred Action to parents of U.S. citizens and lawful permanent residents
Undocumented parents of U.S. citizens and lawful permanent residents born on or before Nov. 20, 2014, who have continuous residence in the U.S. since Jan. 1, 2010 and pass security background checks, will be allowed to request deferred action from removal from the U.S. and to request employment authorization. USCIS expects this plan to go into effect approximately 180 days following the President’s announcement.
Expansion of provisional waivers to spouses and children of lawful permanent residents
The current provisional unlawful presence waiver program will be expanded to include undocumented spouses and sons and daughters of lawful permanent residents, and sons and daughters of United States citizens and will allow for the process to be substantially completed in the U.S. Upcoming guidelines will announce when the program will go into effect.
Securing the border and revising removal priorities
The Department of Homeland Security (DHS) is implementing new policies in an effort to continue to strengthen border security and to expedite the removal of those who threaten national security and public safety. With regards to the border, the strategy will continue the surge of resources but will alter the way in which the resources are marshalled. DHS will be revising its removal priorities to focus on the removal of convicted felons, gang members, illegal aliens apprehended at the border, and those who pose national security threats. The Secure Communities program that identified and removed criminals in state and local jails will be replaced by a new Priority Enforcement Program to remove those convicted of criminal offenses.
How will the executive actions affect businesses?
Assuming they are implemented in accordance with the president’s directives, the business-based provisions should be helpful to U.S. businesses seeking to fill critical talent needs. With respect to the initiatives to expand DACA relief, deferred action for certain parents of citizens and permanent residents, and expansion of provisional hardship waivers, certain individuals who were previously undocumented will now be eligible for employment authorization. We will monitor the administration’s implementation of these provisions and any guidance regarding the use of such employment authorization documentation for employment eligibility verification or re-verification purposes and provide any relevant information in future Immigration Alerts.
Please contact us if you have any questions regarding any of the business immigration-related matters noted above.
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This publication is for general information only. It is not legal advice, and legal counsel should be contacted before any action is taken that might be influenced by this publication. Gunster, Florida’s law firm for business, provides full-service legal counsel to leading organizations and individuals from its 11 offices statewide. Established in 1925, the firm has expanded, diversified and evolved, but always with a singular focus: Florida and its clients' stake in it. A magnet for business-savvy attorneys who embrace collaboration for the greatest advantage of clients, Gunster’s growth has not been at the expense of personalized service but because of it. The firm serves clients from its offices in Fort Lauderdale, Jacksonville, Miami, Orlando, Palm Beach, Stuart, Tallahassee, Tampa, The Florida Keys, Vero Beach and its headquarters in West Palm Beach. With more than 160 attorneys and 200 committed support staff, Gunster is ranked among the National Law Journal’s list of the 350 largest law firms. More information about its practice areas, offices and insider’s view newsletters is available at www.gunster.com. |
