On Thursday, November 20th 2014, along with President Obama’s announcement regarding his Executive Action on Immigration, Department of Homeland Security (“DHS”) Secretary Jeh Charles Johnson issued a memo to the Directors of U.S. Citizenship and Immigration Services (“USCIS”) and Immigration and Customs Enforcement (“ICE”) directing the agencies to take action on the President’s announcements to improve the employment-based immigration system (hereinafter “DHS memo”). The DHS memo provides a general overview of proposed changes the government wishes to implement, relating to skilled immigration, in order to address some longstanding issues and problems in our antiquated business immigration system. The following is a brief overview of the most pertinent of the proposed measures:
1. Reform Optional Practical Training (“OPT”) for Foreign Students and Graduates of U.S. Colleges and Universities: Most foreign students on F-1 (student) visas are eligible for 12 months of post-graduate OPT work authorization as long as the work experience that they seek is in a field that relates to their program of study. Under current regulations, OPT can be extended an additional 17 months for a total of 29 months of work authorization for U.S. college graduates with degrees in designated science, technology, engineering and mathematics (“STEM”) fields. The proposed regulatory changes will seek to expand the degree programs eligible for OPT and extend the time period and use of OPT for foreign graduates. Finally, it is proposed that certain labor market protections, which could include a prevailing wage requirement, will be imposed in order to safeguard the interests of U.S. workers in related fields.
2. Pre-Registration for Adjustment of Status: With the emphasis on facilitating foreign worker portability, USCIS is expected to develop new regulations that will allow foreign nationals with an approved employment-based immigrant visa petition (Form I-140) who are caught in the immigrant visa quota backlogs to pre-register for adjustment of status in order to obtain the benefits of a pending Application for Adjustment of Status (Form I-485), notwithstanding that their respective priority dates are not current. This proposal will not only benefit the employee who is the principal green card applicant by permitting the principal to apply for an employment authorization document and travel document (while also allowing the principal to port to another employer after the I-485 is pending for 180 days), but it will also enable his or her dependents to obtain employment authorization and immediately enter the U.S. labor market.
3. Expanded Green Card Portability: USCIS is expected to provide additional guidance regarding the definition of a “same or similar” job for purposes of expanding eligibility for a green card applicant to be promoted to a new job within the same company or, alternatively, to port to a new job with a new employer. This guidance will help not only those in the green card process who wish to change employers, but also those employees who move to a different job with the same employer.
4. Proposed Rule to Extend Work Authorization to Certain H-1B Spouses: While this was not specifically addressed in the DHS memo, it is rumored that the proposed rule published in the Federal Register in May 2014 to extend work authorization to the H-4 spouses of H-1B specialty occupation workers with an approved employment-based immigrant visa petition (Form I-140) may also be finalized in the next few months.
5. Bringing Greater Consistency to the L-1B Visa Program: The L-1 visa program is a common vehicle used by multinational companies to transfer executive, managerial or “specialized knowledge” personnel to the U.S. from locations outside of the U.S. Noting the “vague guidance and inconsistent interpretation” of the term “specialized knowledge,” Secretary Johnson directed USCIS to issue a policy memorandum that provides clear, consolidated guidance on what constitutes “specialized knowledge” for L-1B visa eligibility.
6. Promoting Research and Development in the United States: The DHS memo recognizes that the current immigration laws do not meet the needs of foreign entrepreneurs and calls for enhanced and expanded options under the law to encourage foreign entrepreneurs to invest, create jobs and generate revenue in the U.S., including a broader application of the “public interest” parole authority and “national interest” waiver of the labor market test and job offer requirements for green card status.
It is important to note that the details and timing for implementing many of the above measures remains uncertain, since many of them may require a change in regulations with a notice and comment period. It also remains to be seen whether Congress will act on comprehensive immigration reform, which could have the effect of preempting some of the executive actions taken by President Obama.
Please stay tuned for additional information on the pursuit of President Obama’s Executive Order as we plan to issue additional advisories in the future as key components of the executive action are implemented.