Fragomen on Immigration: Injunction Against President’s Executive Action Does Not Affect Business Immigration Initiatives
March 20, 2015
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While the recent federal court injunction against key portions of President Obama’s executive action on immigration has put the future of the Administration’s deferred action programs in doubt, employers of foreign nationals in the United States should rest assured that the government’s business-related immigration reforms are still going forward.
The DAPA and Expanded DACA Programs for Certain Undocumented Immigrants
President Obama’s executive action on immigration most famously holds out the prospect of deferral of deportation, and the opportunity to work lawfully, for up to an estimated four to five million potentially eligible undocumented immigrants in the United States.
Building on the existing Deferred Action for Childhood Arrivals (DACA) program, the President announced on November 20, 2014 that the Department of Homeland Security (DHS) planned to expand that program to people of any current age who entered the United States before the age of 16 and who have lived in the United States continuously since January 1, 2010. As initially implemented, DACA was only available to persons who were under the age of 31 as of June 15, 2012 (the date the program was publicly announced). The expanded DACA program, once implemented, will also provide DACA recipients with employment authorization for up to three years (up from the current two years).
Also announced was a new, much more expansive program known as DAPA. Originally called Deferred Action for Parental Accountability, the name of the program was later changed to the more descriptive and accurate Deferred Action for Parents of Americans and Lawful Permanent Residents (though the government is still using the shorter acronym, DAPA). As the name implies, DAPA would allow parents of U.S. citizens and lawful permanent residents to request deferred action and employment authorization for three years, provided they have lived in the United States continuously since January 1, 2010, and pass required background checks.
The injunction affects only the expanded DACA program and the DAPA program. Foreign nationals who qualify under current DACA eligibility criteria can continue to file initial applications and renewals.
The Business Immigration Initiatives
The injunction issued by Judge Andrew Hanen of the U.S. District Court for the Southern District of Texas was based on his determination that the Administration allegedly violated the Administrative Procedure Act by creating the DAPA and expanded DACA programs without posting a notice in the Federal Register and giving the public an opportunity to comment. (See Memorandum and Order in Texas v. United States, Civ. No. B-14-254 (S.D. Texas, Feb. 16, 2015)). At this writing the injunction is still in place. The Administration has appealed the district court’s order to the Fifth Circuit Court of Appeals.
But the DAPA and expanded DACA programs are only the most prominent, and most controversial, of the Administration’s executive actions on immigration—and are the only programs affected by the injunction. The Administration’s executive action also includes a number of initiatives meant to improve the employment-based immigration system. The Administration determined at the outset that many (though not all) of these initiatives would need to conform to the APA’s notice-and-comment rulemaking provisions.
For example, one of the President’s executive actions was an announcement that the Administration planned to go forward with longstanding plans to extend work authorization to certain spouses of H-1B workers, and DHS published a final rule to that effect in the Federal Register on February 25, 2015. Beginning on May 26, 2015, DHS will begin accepting applications for employment authorization from certain H-4 spouses of H-1B nonimmigrants who are seeking employment-based lawful permanent residence. (More details on eligibility requirements can be found here.)
The Administration has also announced that it will seek a broadening of the optional practical training (OPT) program for F-1 students who have earned degrees science, technology, engineering and math (STEM) fields from a U.S. college or university. Though the exact form of expansion is not yet known, it is likely to include a broader list of eligible degree fields and a longer (beyond the current 29 months) period of work authorization, but also labor market protections for U.S. workers, which have long been urged by critics of the program. The rulemaking involved in making these changes will also help resolve a challenge to the existing OPT provisions for STEM graduates raised by a lawsuit against DHS by a technology workers’ union.
In another business-related initiative, U.S. Citizenship and Immigration Services (USCIS) has been directed to finalize a new policy memorandum that is expected to offer clear guidance to both adjudicators and the business community on specialized knowledge for L-1B nonimmigrants, with the hope that it results in more reasonable adjudications and greater transparency. The Department of Homeland Security will also create new mechanisms to attract and retain inventors, investors, researchers and company founders.
The government is also planning to make changes in the way that the green card queue is administered, which will benefit both employers and employees. The Immigration and Nationality Act (INA) only allocates a maximum of 140,000 immigrant visas each year to employment-based immigrants, and this quota includes spouses and children. For this reason, most employment-based immigrant visa categories are oversubscribed, causing lengthy backlogs that sometimes lead to years-long delays for foreign workers seeking permanent residence (“green cards”) based on employment in the United States. At the same time, in past years some immigrant visas have gone unissued, not because of lack of demand but due to administrative processing backlogs.
To address these problems, the President’s action includes plans to allow for the earlier filing of adjustment of status applications. Once implemented, both principal applicants and dependent family members would be able to obtain employment authorization and advance parole at an earlier point in time. Since adjustment of status applications could be filed earlier, green card portability would also be facilitated. It is unclear whether this change will require publication of a Notice of Proposed Rulemaking in the Federal Register, or whether the Department of State can simply change the way in which it counts and allocates immigrant visas. Similarly, there is some discussion as to whether recapturing unused immigrant visas from past years might be allowed within the scope of these changes.
Conclusion
The business-based provisions of the President’s
execution action on immigration should be helpful to employers once implemented, but few will be imminent since inter-agency coordination and regulatory review is required in most instances. In particular, the ability of employment-based applicants to file for adjustment of status earlier in the process should benefit career progression by those experiencing green card backlogs and promote employee retention policies.
Assuming the injunction against implementing the DAPA and expanded DACA programs is lifted, this will also have an impact on employers. The entry of newly-authorized workers into the labor pool will create some compliance-related challenges for employers, particularly those with a workforce composed largely of lower-skilled workers. That will be the subject of a future blog post.
