Monday, November 24, 2014

President Obama's Immigration Accountability Executive Action-What Individuals and Employers Need to Know

On November 20, 2014, President Obama delivered remarks in a national address regarding his Immigration Accountability Executive Action[1], which will provide wide-reaching relief to millions of undocumented persons. While the President's address emphasized greater resources for law enforcement at the border, a change of enforcement priorities for the removal of criminal aliens not families, national attention focused on his plan to provide temporary deferred action for the parents of U.S. citizens and permanent residents. The President also removed the age restrictions for the DACA (Deferred Action for Childhood Arrivals). The benefits provisions with the widest effect for the American workforce are summarized below.

DACA age expansion- The Deferred Action for Childhood Arrivals (DACA) program is expanded to those persons who are now over 31 years of age, born prior to June 15, 1981, who came to the U.S. before age 16 and who have been continuously resident since January 1, 2010.[2] The period of DACA and work authorization will be extended from two years to three years for new applicants and renewals. The USCIS estimates that this provision will be implemented approximately 90 days after November 20, 2014. Applicants for this DACA expansion of Deferred Action will need to apply and receive an employment authorization document (Form I-766, which serves as a List A document with an expiration date for I-9 verification purposes) before they can be legally employed.

Deferred Action for Parental Accountability (DAPA) - Parents of U.S. citizens and lawful permanent residents born on or before November 20, 2014, who have continuous residence in the United States since January 1, 2010, will be allowed to request deferred action and employment authorization for three years. Similar to DACA, the Deferred Action for Parental Accountability program will require that applicants are not enforcement priority subjects and pass background checks. The USCIS estimates that this provision will be implemented approximately 180 days after November 20, 2014. Applicants will pay the work authorization and biometrics fees, which currently amount to $465, with no fee waivers and limited fee exemptions. A DAPA Applicant will need to apply and receive an employment authorization document, Form I-766, which serves as a List A document with an expiration date for I-9 verification purposes, before he or she can be legally employed.

Unlawful Presence Provisional Waiver expansion- The President expanded the use of provisional waivers of unlawful presence to include the spouses and sons and daughters of lawful permanent residents and the sons and daughters of U.S. citizens. Currently, only spouses and minor children of U.S. citizens are allowed to apply to obtain provisional waivers prior to a consular immigrant visa appointment.

Highly-skilled businesses and workers- On November 20, 2014, Jeh Johnson, the Director of the Department of Homeland Security, issued a memorandum[3] to the USCIS directing certain measures be undertaken to benefit U.S. businesses and workers by continuing to grow the economy and create U.S. jobs. He directed that the immigrant visa number system, administered by the Department of State with USCIS participation, acts fairly and efficiently to facilitate the immigration process for prospective employment based immigrant registrants, including:                                            

Modernize the employment-based immigrant visa system- USCIS and DOS are expected to cooperate to improve the system for determining when immigrant visas are available to applicants during the fiscal year. DOS has agreed to modify the visa bulletin system and USCIS is expected to compliment these changes

Adjustment of status changes- Adjustment applicants often wait many years for their visas to become available. DHS will make regulatory changes to allow these workers to move or change jobs more easily. Individuals with approved employment-based immigrant petitions waiting for visa number availability will be allowed to file for adjustment of status to obtain the benefits of a pending adjustment application such as advance parole and employment authorization.                           

Greater utilization of the EB-2 National Interest Waiver- The USCIS was directed to clarify the standard by which an EB-2 national interest waiver can be granted “with the aim of promoting its greater use for the benefit of the U.S. economy.” This will be done by policy memorandum or regulation. No time frame has been provided.[4]

National interest waiver and parole for foreign inventors, researchers and founders of start-up enterprises- DHS will clarify the national interest waiver provisions for the adjudication of national interest waiver for foreign inventors, researchers and founders of start-up enterprises to benefit the U.S economy.[5] DHS will authorize parole, on a case-by-case basis, to eligible 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 who otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.[6]  

Enhancing options for foreign entrepreneurs- DHS will expand immigration options for foreign entrepreneurs who meet certain criteria for creating jobs, attracting investment, and generating revenue in the U.S. The criteria will include income thresholds so that these individuals are not eligible for certain public benefits like welfare or tax credits under the Affordable Care Act.  

Expand and extend on-the-job training for STEM graduates of U.S universities- In order to strengthen educational experiences of foreign students studying science, technology, engineering, and mathematics (STEM) at U.S. universities, DHS will propose changes to expand the degree programs eligible for inclusion in the STEM fields and to extend the time period and use of Optional Practical Training (OPT) for STEM students.

In addition, DHS will clarify its guidance on specialized knowledge for L-1B visas for foreign workers who transfer from a company’s foreign office to its U.S. office. DOL will take regulatory action to update its PERM regulations in an effort to modernize the PERM recruitment requirements for testing the labor market for able, willing and qualified U.S. workers. DHS Secretary Johnson has directed that further guidance be issued that travel on advance parole is not a “departure” within the meaning of INA §212(a)(9)(B)(i) and therefore does not trigger the three and ten year bars for unlawful presence) applies to all cases.  

Implementation- USCIS and other agencies and offices are responsible for implementing these initiatives as soon as possible. Some initiatives will be implemented over the next several months and some will take longer. Over the coming months, USCIS will produce detailed explanations, instructions, regulations and forms as necessary. We will provide additional information regarding the benefits provisions, as well as I-9 and related identity and employment authorization verification issues in the future.

[1] Presidential Address, November 20, 2014,  available on author’s Website
[2] DHS, Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Whose Parents are U.S. Citizens or Permanent Residents,” (Nov. 21, 2014). 
[3] DHS Memorandum,  Immigration Executive Action, Highly Skilled Businesses and Workers, November 20, 2014, available on author’s Website
[4] Id.
[5] Executive Actions on Immigration,  available on the USCIS Website,
[6] Id.