President Barack Obama announced sweeping new administrative reforms to the way current immigration laws are enforced. Politics aside, there are a number of changes to the ways these new rules will be administered. Some will occur quickly, but others will take months.
At this point most details are not available, but the following outline describes the major issues that are expected to affect employers and employees:
Business immigration changes
■ DHS will finalize rules in December or January that will provide temporary work authorization (Employment Authorization Documents – EAD) to the H-4 spouses of high-skilled temporary workers in the U.S. in H-1B status who have green card applications pending.
■ Improve the Visa Bulletin priority date system to give more predictability to the issuance of green cards for people waiting in the per-country backlogs. Improve the system to ensure that every available green card in a given fiscal year is allotted to an individual. Unfortunately, DHS will not increase the number of employment-based green cards or exempt spouses and children from being counted under the annual cap, as many had hoped, but at least this reform will prevent the Immigration Service from “losing” otherwise available green cards due to administrative error and inefficiency.
■ Allow immigrants with approved I-140 Immigrant Visa petitions to receive the same temporary work and travel benefits as those with pending I-485 applications. Practically speaking, this means that even if an employee’s priority date is not current and s/he was not able to file an I-485 application, the employee will still receive similar benefits to someone who was able to file the I-485 application.
■ Allow more flexibility and certainty to people to change jobs if their green card applications are pending. DHS will explain and clarify the “same/similar job classification” standard for people with long-pending green card applications.
■ Reform and modernize the PERM labor certification process to move away from the existing strict formalistic system. End the practice of denying PERM applications for nonmaterial errors in the process.
■ Expand the use of Optional Practical Training (OPT) internship/work opportunities for foreign students after graduation. This will likely include increasing the duration of OPT and allowing more students to use the additional 17-month STEM extension.
■ Expand and clarify the National Interest Waiver green card program through policy changes for inventors, researchers, and founders of businesses. This is a green card program for immigrants with at least a master’s degree who can prove that their work furthers the national interests of the United States
■ Allow inventors, researchers and business founders who are not yet eligible for the National Interest Waiver program to stay temporarily in the U.S. in a “parole” status. Those people who gain significant investment in their businesses, create American jobs, or are working on promising research would be eligible. This will require federal rulemaking.
■ Improve adjudication of L-1B “specialized knowledge” visa petitions by clarifying and making consistent the standards required to get L-1B status for employees of companies who have worked for the company outside the U.S. for at least a year and are being transferred to the U.S. to work for that company.
Changes in deportation system
■ The I-601A provisional waiver system will be expanded to include the spouses and children of people with green cards. The definition of “extreme hardship” in these cases will be expanded and clarified. I-601A waivers are used by people who have no immigration status in the U.S., but are married to U.S. citizens or, now, people with green cards.
■ Deportations will continue and priority will be given to the following groups:
1. Suspected terrorists, convicted felons (including aggravated felonies), convicted gang members, and people apprehended on the border.
2. People convicted of serious or multiple misdemeanors, and very recent entrants (i.e., those who entered after 1/1/14).
3. Those who, after 1/1/14, failed to leave under a removal (deportation) order or returned after being deported.
■ Reforms to the Immigration Court system.
■ Expand the scope of U and T visas to protect the victims of violence and aid in government investigations.
Expansion of deferred action for undocumented immigrants
Deferred Action is a form of prosecutorial discretion by which the government deprioritizes deportation, allowing an undocumented immigrant to avoid deportation, but it does not confer any visa, green card or citizenship status. In 2012, the government started Deferred Action for those who came to the United States as children, commonly referred to as Deferred Action for Childhood arrivals “DACA.” The government is now expanding certain parameters of DACA for those adults who have been in this country since January 1, 2010, are the parents of U.S. citizens or lawful permanent residents, and who are otherwise not enforcement priorities, as detailed above.
Expanding deferred action to parents
Four million to five million people will now be eligible for deferred action if they:
■ Have, as of November 20, 2014, a son or daughter who is a U.S. citizen or has a green card (lawful permanent resident status).
■ Have continuously resided in the United States before January 1, 2010.
■ Were physically present in the United States on November 20, 2014, and at the time of making a request for consideration of Deferred Action with USCIS.
■ Have no lawful status on November 20, 2014.
■ Are not an enforcement priority as mentioned above .
■ Present no other factors that, in the exercise of discretion, makes the grant of Deferred Action inappropriate.
This expansion of Deferred Action does not apply to parents of DACA children, as many had thought. Applicants must submit to biometrics and background checks before receiving work authorization (EAD).
Expansion of DACA for children
■ Remove the DACA age cap and adjust the date of entry requirement, so that all otherwise eligible immigrants who entered the United States by January 1, 2010 and before attaining the age of sixteen (16).
■ The age restriction of those who were born before June 15, 1981, (i.e. older than 31 on June 15, 2012) will no longer apply. Implementation will begin within 90 days.
■ Extend DACA renewal and work authorization (EAD) to three-year increments rather than the current two-year increments beginning on Nov. 24, 2014.
Quarles & Brady attorneys Grant Sovern, Sarah Ames, Jose Carrillo, Eric Ledbetter, Maria Kallmeyer and Emily Shircel contributed as authors of this Milwaukee Biz Blog, which is used with permission from the law firm.