By Richard J. Block
On November 20, 2014, President Obama addressed the nation and outlined his planned executive actions on immigration. The following day he issued two Presidential Memoranda setting forth additional directives for modernizing and streamlining the visa system and integrating millions of undocumented immigrants and refugees into the fabric of our society.
Agree or disagree with the way in which the President is going about it, these changes, once implemented, are certain to affect many U.S. employers, foreign workers, spouses of foreign workers, U.S.-educated foreign college graduates, foreign entrepreneurs, the parents of U.S. citizens and lawful permanent residents, and are intended to have a positive impact on the U.S. economy.
Here is a brief overview of those proposed changes:
- Employment authorization for spouses of H-1B visa holders (skilled workers).
- Expansion of the degree programs eligible for Optional Practical Training (OPT) (work authorization for foreign students usually granted after completion of a particular course of study) and extension of the time period and use of OPT for STEM (Science, Technology, Engineering and Mathematics) students and graduates consistent with the law.
- Promotion of Research and Development in the United States through:
- Creation of a new program that would permit "parole" status for inventors, researchers, and founders 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.
- Expansion and clarification of the standard by which an EB-2 national interest waiver can be granted to individuals with exceptional ability and/or advanced degrees and entrepreneurs in the arts, sciences and business.
- Clarification and guidance on the meaning of "specialized knowledge" to improve consistency in adjudications of L-1B (intra-company) visa petitions.
- Modernization of the PERM (alien labor certification) Program administered by the U.S. DOL (this is the first step in an employment-based immigration application for most H-1B workers).
- Implementation of rules to provide greater clarity to U.S. employers and freedom for employees who are in the queue to become lawful permanent residents and want to change their jobs without jeopardizing their ability to adjust their status to that of a lawful permanent resident.
- Allow individuals with an approved employment-based immigrant petition to obtain certain benefits while waiting to file for adjustment of status.
It will likely take several months for these measures to be formally drafted and implemented. The November 20, 2014 memorandum from DHS Secretary Johnson to USCIS Director Leon Rodriguez, which outlines in greater detail the provisions announced by President Obama, expressed the expectation that the proposals contained in the memorandum would be “published in a timely manner.” Hopefully, that will be the case.