President Announces Plans for Business Immigration, Removal Relief

In a speech to the nation this evening, President Obama announced several initiatives to provide relief to the undocumented and to facilitate the hiring and retention of skilled workers. The President laid out a broad outline for administrative reform, with several agency directives now published on the DHS website. The timing of the implementation of each discrete action will be different, with some taking place very soon and others, particularly those requiring regulatory review, taking several months or longer. Here is a brief summary of the President’s initiatives, based on public announcements and other discussions in which Fragomen has participated: 

Business Immigration Initiatives 

Ability to File Adjustment of Status Applications Earlier: The President’s action includes revamping the way that the employment-based green card backlog is administered, with the goal of allowing 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. We expect the proposal to be published in the Federal Register, though it is unclear whether it would appear as a proposed or interim rule. If the former, it may take quite a while before final promulgation. 

H-4 Spousal Employment: Finalization of the new rule permitting employment authorization for certain H-4 spouses of H-1B workers in the green card process is expected in the next two months. Further expansion of spousal work authorization is also being considered. 

Expansion of STEM OPT: The President plans to accelerate inter-agency discussions to expand Optional Practical Training (OPT) opportunities for F-1 students in science, technology, engineering and math (STEM) fields. Proposed changes are expected to include expansion and extension of the existing program and to require an ongoing link between work and course of study through continued ties between OPT students and their schools after graduation. 

L-1B Specialized Knowledge Memorandum: For the past several years, restrictive and often inconsistent L-1B adjudications have been a major hindrance for employers needing to transfer critical specialized knowledge workers from abroad. One of the President’s initiatives is to finalize a new policy memorandum that is expected to offer clear guidance to both adjudicators and the business community on specialized knowledge, with the hope that it results in more reasonable adjudications and greater transparency. Agency sources indicate that publication of the memo may be imminent. 

Facilitation of Entry for Entrepreneurs: One of the President’s proposals is a provision that would provide parole for entrepreneurs coming to the United States. This is expected to speed the entry of inventors, researchers, and company founders – with a goal of encouraging innovation and growing the economy. The Administration is also working on initiatives to expand guidelines for second preference national interest waivers to include entrepreneurs. 

Department of Labor Listening Sessions: The Department of Labor will be holding listening sessions for companies on PERM and a variety of issues. 

Relief from Removal and Enforcement 

Deferred Action for Parents of Permanent Residents and Citizens: In an effort to support family unity, the President has ordered that certain undocumented parents of U.S. citizens and lawful permanent residents will be eligible for deferred action. Related to this, those granted deferred action will also be eligible for employment authorization and advance parole. Such individuals will be required to undergo background checks, pay fees, and pay taxes. 

Expanded DACA Program: The Deferred Action for Childhood Arrival (DACA) program will be expanded to include individuals brought to this country as children if they entered before January 1, 2010, regardless of how old they are today. Under the existing program, DACA provided relief to certain young persons without immigration status who came to the United States before the age of 16, lived here continuously for at least five years as of June 15, 2012, and met other eligibility criteria. 

Expansion of Provisional Extreme Hardship Waivers: Another initiative expands the provisional unlawful waiver program announced in 2013 by allowing the spouses, sons or daughters of lawful permanent residents and sons and daughters of U.S. citizens to substantially complete the waiver process in the United States, rather than going overseas and risk being prohibited from returning because of the three and ten year bars. Currently, only spouses and minor children of U.S. citizens are allowed to apply to obtain a provisional waiver. The “extreme hardship” standard that must be met to obtain a waiver will also be broadened. 

Enforcement Priorities: The government will review enforcement priorities, consistent with previous initiatives focusing on criminals but replacing the Secure Communities initiative with a new Priority Enforcement Program that works more collaboratively with state and local officials. Secretary of Homeland Security Johnson is announcing a new initiative to accelerate enforcement at the Southern Border. 

What This Means for Employers and Foreign Nationals 

The business-based provisions 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. The expansion of DACA relief, deferred action for certain parents of citizens and permanent residents, and expansion of provisional hardship waivers should facilitate family unity and are positive steps. 

This alert is for informational purposes only. If you have any questions, please do not hesitate to contact your designated Fragomen professional.