On November 20, 2014 President Obama announced a set of immigration changes to be implemented by executive action within the parameters of current U.S. immigration laws.  The announcement was accompanied by a 33-page memorandum opinion from the U.S. Department of Justice (DOJ) explaining why the proposed executive action is legal. None of the proposals can take effect until sometime in 2015 after the U.S. Department of Homeland Security (DHS) develops detailed criteria and application procedures for each program. Meanwhile Congress could change all of this at any time by amending the U.S. Immigration and Nationality Act (INA).

The executive actions don’t address certain key issues that are of great interest to the business community such as the H-1B cap which is dictated by the INA.  H-1Bs are readily available for colleges and universities, nonprofits affiliated with colleges and universities, and nonprofit research organizations.  But the H-1B cap is a major challenge for businesses with hard-to-fill professional positions. Still the announcement included good news for employers.

Deferred Action for Childhood Arrivals (DACA) and Parental Accountability (DAPA)

The new deferred action provisions for Dreamers and their parents have received the most attention in the national press. Deferred Action for Childhood Arrivals (DACA) for “Dreamers” who arrived in the United States before age 16 will be expanded.  The new Deferred Action for Parental Accountability (DAPA) program will help the parents of U.S. citizens and lawful permanent residents remain in the United States to care for them.  DACA and DAPA will allow qualified individuals to remain in the United States temporarily, renewable every 3 years for as long as the programs continue.  The DAPA program is expected to expand the pool of skilled and unskilled workers authorized for employment in the United States.

 Employment Authorization For Green Card Applicants Waiting For Visas To Be Available

Due to country-specific annual numerical limits on U.S. immigration, even if an employer’s immigration case is approved the employee may not be able to work lawfully or obtain a green card until many years later. This delay of years complicates the employer-employee relationship.  It can lead to lost opportunities for employment, lost opportunities for organizations to obtain grant funding restricted to projects managed by U.S. citizens and permanent residents, and lost employment opportunities for spouses and children of the legal immigrant workforce.  It reflects poorly on the U.S. immigration system that citizens of countries from which we receive high numbers of legal immigrants year after year (China, India, Mexico, the Philippines) don’t gain the benefits of permanent resident status until many years after the employer’s sponsorship case is approved. Only Congress could change the annual numerical limits on immigration. But the executive branch will change the application process and the timing for interim benefits green card applicants may receive such as employment authorization for themselves and their families.

Employment Authorization for Spouses of H-1B Workers

It’s often a hardship for professionals to accept a position in the United States if their spouse can’t work in the United States while they’re living here. The President announced new employment authorization for spouses of H-1B workers.  This will be a big improvement, whether it’s available throughout the period of H-1B employment or only after a certain point in the permanent residency process as proposed by DHS earlier this year.

Immigration Relief For Start-Up Entrepreneurs, Inventors and Researchers

U.S. immigration law currently authorizes investor visas and visas for business owners from abroad who expand into the U.S. market.  But there are no visa categories for the many entrepreneurs who start their first company here in the United States and don’t need to invest tens of thousands of dollars to get started.  The President proposed new immigration pathways through parole entry and national interest waivers to allow entrepreneurs, inventors and researchers to create jobs in the United States. 

Expanded Employment Authorization For International Graduates Of U.S. Post-Secondary Institutions

International students who are educated at U.S. colleges, universities and other post-secondary institutions are eligible for short-term employment with U.S. employers for optional practical training (OPT) after they graduate.  OPT generally is limited to 12 months.  Graduates in science, technology, engineering and math (STEM) fields may have post-completion employment benefits for up to 29 months, but only to work with employers enrolled in E-Verify.  To continue working in the United States long term, international graduates from U.S. institutions need immigration sponsorship by an employer. Immigration sponsorship can be expensive for employers, depending on the circumstances.  Business employers subject to the H-1B cap may not have the ability to offer sponsorship even if they are willing.  The President announced that executive action will extend the duration of OPT.  It’s reasonable to expect that any additional OPT will be only for employment with employers enrolled in E-Verify.

Other Matters Addressed By Executive Action

The President’s announcement of executive action included a variety of other provisions to modernize and improve the employment-based immigration system, better coordinate the efforts of the government agencies involved, allocate more resources to border security, focus federal enforcement and prosecution efforts on those who engage in criminal behavior while unlawfully present in the United States, and provide a more humane experience for individuals who claim a lawful right to live in the United States.  We expect many of these efforts will improve the U.S. immigration experience for employers, and for professionals and skilled and unskilled workers and their families.

We look forward to future announcements from the Obama administration in 2015 with details about how the new immigration measures will be implemented.  Please let us know if you have any questions about the new provisions.

Post by Leigh Cole, Esq.