On November 20, 2014, President Barack Obama announced a series of planned executive actions to be undertaken by his administration to address a variety of systemic problems in the U.S. Immigration processes. While these proposed actions may benefit millions of impacted non-citizens, it should be noted that these are executive orders rather than legislative fixes passed by Congress and signed into law, and may as a result be repealed in the future. However, given the recent bottleneck in Congress in coming up with an acceptable bipartisan immigration reform legislation package, these proposed administrative actions may provide at least temporary relief to many.
A variety of planned administrative steps will be taken by the White House initiative, entitled the "Immigration Accountability Executive Actions." Of particular note are the following:
Business- and Employment-Related:
- Non-citizens who have potential eligibility for lawful permanent residence and issuance of "green cards" based on offers of permanent employment from U.S. employers will benefit from a modernization and streamlining of the permanent labor certification application process to become eligible. In addition, the burdens of the backlogs for actual approval of lawful permanent residence may be lessened, by allowing beneficiaries of approved employment-based visa petitions to "pre-register" for their lawful permanent residence without waiting for their priority dates to become "current", which have created delays measured in years under the present system. This "pre-registration" process will likely allow qualified applicants to receive employment and travel authorization, and free them to change jobs to same or similar positions with other employers without jeopardizing or sacrificing eligibility for their green card issuance. (Note: there is no present timetable for implementation of this particular provision).
- Larger numbers of foreign students may be eligible for extension of the "OPT" (Optional Practical Training), as there will be an expansion in the degree programs eligible for OPT and an extension of OPT use and eligibility periods for "STEM" students. (Note: again, no time frame has been given for implementation).
- Eligibility for permanent resident status under the Employment-Based Second Preference "National Interest Waiver" category will be expanded to include a wider range of potentially qualified applicants, and preferential "parole" status will be accorded to foreign entrepreneurs and inventors/researchers to help them to pursue their projects in the United States.
- "Specialized knowledge" employees of multi-national companies with affiliated or subsidiary U.S. operations will be able to apply for temporary transfer to the U.S. under more consistent and uniform standards.
- Spouses of "H-1B nonimmigrant visa" employees will be able to apply for their own employment authorization to be eligible to work in the United States. (Note: this is likely to be implemented early in 2015).
Family-Based Initiatives:
- Eligibility for "Deferred Action for Childhood Arrivals" (DACA), which was implemented in 2012 to give employment authorization and temporary status to certain younger undocumented non-citizens otherwise ineligible for legal status in the United states, has been expanded to a larger number of potentially qualified individuals by removing the "age cap" and advancing the date on which they needed to establish their presence in the U.S., from June 5, 2007 to January 1, 2010. The length of temporary approved status was also extended to three-year periods.
- New "Deferred Action for Parental Accountability" (DAPA) is to be implemented, to allow undocumented parents of U.S. citizen children to apply for employment authorization and temporary status for three-year renewable periods in the U.S., if they can show that they have a U.S. citizen child as of November 20, 2014, and that they have been physically present in the U.S. since on or before January 1, 2010.
- "Provisional Waiver" eligibility to expedite immigrant visa processing for qualified family members will be expanded from the current immediate family members of U.S. citizens to immediate family of Lawful Permanent Residents. Also, the "extreme hardship" that needs to be shown for issuance of the waiver will be clarified, with a possible "presumption" of extreme hardship to be defined.
- Clarification that travel abroad on a pre-approved "advance parole" document does not create a prospect of a bar to eligibility for adjustment of status under established legal precedent is expected, to be applied across agencies.
Additional initiatives will include a re-evaluation of enforcement priorities and guidelines for prosecutorial discretion determination as applied to those non-citizens with prior adverse criminal or immigration histories, depending on the severity of such offenses and their potential eligibility for benefits under the above listed initiatives. Others include expanded immigration opportunities to non-citizen families of U.S. Armed Forces members and increased promotion of naturalization awareness for potentially eligible applicants.
Clearly, a broad range of issues are addressed, and a wide array of potentially impacted employers, families, and individuals may benefit from these proposals, to be given full implementation over the course of the next year. Our Immigration Practice Area is actively engaged in reviewing and analyzing these developments as they may be applied and used to assist in our clients' real-life scenarios.
For more information on how these initiatives could impact you, please contact Eric Schultz, Immigration Practice Area Chair at eschultz@hblaw.com or any member of our practice area.