Immigration and firm news

Legal Immigration and Employment Related Reforms in Obama’s Executive Action

Below is a summary of the various Executive Actions announced by President Obama on November 20, 2014 concerning legal immigration to the USA.  Most of the press coverage has been about the hot-button topic of what to do with the millions of people who are in the USA already in undocumented status. There has been virtually no coverage of the President’s plans concerning legal immigration.  While he is constrained by Congressional statute and Congressional inaction to fix legal immigration, there are many actions he can take to make the existing categories, numbers and requirements work more efficiently and modernly.  All of the following Executive “Actions” are in the way of directives to the various agencies that carry out immigration functions requiring them to either review and update policy memoranda, issue regulations that implement Congressional statute, or call for studies and recommendations to be made by the various agencies.  Let’s be clear here: There are no new visa categories, no new requirements, and no new visa numbers because only Congress can fix those.

Here is the list of memos and actions directed by President Obama last week. Additional memos are expected to be forthcoming.

Presidential Memo dated November 20, 2014 to Modernize and Streamline the Legal Immigration System

Within 120 days US Citizenship and Immigration Services (USCIS), the US Department Of State (DOS), and an interagency group, working with stakeholders, will develop recommendations to improve the nonimmigrant and permanent visa immigration system.They must take into account the integrity of the system, demand for nonimmigrant and permanent visas, in light of existing Congressional statutes governing categories, numbers and requirements, and look at agency technology to improve efficiencies.

White House Fact Sheet on Economic Benefits of Executive Action

This is a run-down of the Administration’s calculations of the perceived impact on the US economy by all of the Executive Actions taken by the President vis a vis the agencies that report to him.

I.  DHS to USCIS Memo: Johnson-Rodriguez Memo 11/20/2014 Policies Supporting U.S. High Skilled Businesses and Workers

A. Directs DHS to make policy and regulatory changes to promote flexibility and mobility for workers/employers, promote efficiencies, save costs, and improve competitiveness

  1. Finalize regulations that were previously published in draft form to grant certain spouses of H-1Bs (in H-4 status) work authorization.
  2. Finalize policy memos on adjudication of employment-based petitions.
  3. Modernize and improve the immigrant visa process (within the existing statutory framework – only Congress can fix numbers, categories and requirements). (Would affect family immigration as well.
  4. Work with US Dept. of State to make sure all existing visas available are indeed used and allocated
  5. Work with US Dept. of State to modify monthly Visa Bulletin to better reflect what visas are available.
  6. Amend regulations to allow beneficiaries of approved visa petitions to change jobs or employers while waiting for the quota to become current, for example allowing for promotions to managerial/supervisory status

B.  Reform Foreign Student Optional Practical Training

Directs Immigration and Customs Enforcement (ICE) to issue regulations to modify the Student Visa Optional Practical Training (OPT)  program to allow for longer OPT time for additional US graduates by broadening the range of acceptable degrees for this period (29 months), currently limited to designated STEM fields. (Non-STEM grads are limited to one year OPT.)

  1.     Directs ICE and USCIS to strengthen ties OPT status applicants have with their degree granting institutions;
  2.     Strengthens US worker protections in the OPT program.

C. Promote Research and Development in the USA

1.  To promote R&D and attract entrepreneurs and start ups, amend policy or regulations to allow greater use of EB-2 national interest waivers that benefit the national economy.

a.  Requests USCIS to propose a program that uses INA 212(d)(5) parole authority for “significant public benefit” to allow on a case-by-case basis entry of 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 otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting edge research.

b.   Program would allow parolees to enter the USA to research and develop new ideas and businesses in the United States v. abroad. The anticipated regulation will have investor backing, income and resource thresholds.

c.    Individuals will not eligible for federal public benefits or premium tax credits under the Health Insurance Marketplace of the Affordable Care Act.  Note: Parole is not a visa, a green card or citizenship! 

D.  Make L-1B adjudications more consistent.

Directs USCIS to issue a policy memorandum defining specialized knowledge more specifically.

E.  Increase Worker Portability

  1.  Directs USCIS to issue a policy memorandum on what “same or similar” job includes when allowing beneficiaries of immigrant visa petitions who must await the quota backlog to port or change jobs.
  2. Guidance should allow worker, for example, to accept a promotion to a supervisory position or otherwise transition to related jobs within his or her field of endeavor to be on a more level playing field with US workers.

II.   PERM Review

A.  PERM is the process regulated by the US Department of Labor (DOL) that requires employers to advertise and recruit for qualified, willing and able US workers before a job can be made available to a foreign worker (AKA “alien labor certification”).

B. DOL will review he PERM program and regulations to see how the rules could be modernized to be more responsive to changes in the national workforce. DOL will seek input from stakeholders on:

  1.  Options for identifying labor force occupational shortages, surpluses, and domestic worker recruitment requirements;
  2.  Modernization of US worker recruitment requirements, methods and practices;
  3.  Clarification of employer obligations to insure PERM positions are fully open to U.S. workers;
  4.  Review processing time frames and possibilities for premium processing;
  5.  Review application submission and process, and explore feasibility for efficiently addressing non-material errors. (Currently, a PERM can be denied for a mere typo!)
  6. Review other aspects of PERM regulations to meet objectives of the U.S. immigration system, needs of workers and employers, and to insure integrity of the program.

 III. Interagency Task Force to Examine Worker Rights

A DHS, DOL, DOJ, NLRB, EEOC task force will work together to promote effective enforcement of federal labor, employment, and immigration laws so that victims of workplace violations are not exploited, deterred or prevented from bringing workplace claims.

B. Goals:

1. Ensure agencies’ immigration enforcement and worker protection policies, promote workers’ cooperation with labor and employment law enforcement authorities without fear of retaliation;

2. Ensure federal enforcement authorities are not used by parties seeking to undermine worker protection laws by enmeshing immigration authorities in labor disputes; and,

3. Ensure the consistent enforcement of federal labor, employment, and immigration laws.

C. Action items:

1. Develop policies and procedures to ensure consistent enforcement of labor, employment, and immigration laws;

2. Develop consistent standards and procedures for immigration agencies to contact labor agencies when they encounter a potential labor dispute within the meaning of the Revised Memorandum of Understanding between the Departments of Homeland Security and Labor Concerning Enforcement Activities at Worksites, executed on December 7, 2011;

3. Provide greater clarity to workers, worker representatives, advocates, and employers regarding processes and procedures on the intersection between immigration law enforcement and labor and employment law enforcement;

4. Strengthen processes for staying the removal of, and providing temporary work authorization for, undocumented workers asserting workplace claims and for cases in which a workplace investigation or proceeding is ongoing; and

5. Provide stakeholders open and transparent modes of communication with enforcement authorities.

The working group will provide opportunities for communication with external stakeholders, including workers, worker representatives, advocates and employers as appropriate.

IV. USDOL Wage and Hour Division will issue regulations authorizing it to certify more crimes for U (victims of crime) and T (victims of Trafficking) visa applicants.

A. Starting in 2015, adds three new crimes that will allow DOL Wage and Hour Division to certify for U visas: extortion, forced labor, and fraud in foreign labor contracting. (Existing crimes include: trafficking, involuntary servitude, peonage, obstruction of justice, and witness tampering.)

B.  T Visa applicants are “encouraged” to get similar certification from DOL Wage and Hour.

 V. No Memo yet released: Timing of Filing of Adjustment of Status

Expected in the future is a memo dealing with the ability of individuals with an approved employment-based immigrant petition who are caught in the quota backlogs to file for adjustment of status  earlier to allow them to obtain continued employment benefits (work permit) while adjustment is pending until the quota becomes current and the adjustment can be adjudicated. Expected to impact about 410,000 people, a new regulation will be required. (This anticipated action is based on minutes of a meeting  with immigration advocates at the White House on November 20, 2014.)

Keep in mind that all of the items above are not yet the law!! There is nothing anyone can do or apply for at this point in time (November 23, 2014).  In many cases, the government will need to issue specific policy memos or else publish regulations for comment before they can be finalized and implemented.  Stay tuned!