Wondering if any of President Obama’s Executive Actions apply to you?
The President’s Immigration Accountability Executive Actions — Benefits for individuals in the United States pursuant to employment-based visas:
Below is a summary of the issues pertaining to individuals in the U.S. pursuant to employment-based visas. The details are still unclear. Specifically, eligibility criteria, process for application, timing of regulations are largely unknown. However, these are the principal components as we currently understand them.
Timing of Filing for Adjustment of Status for quota backlogged individuals
- The ability of individuals with an approved I-140 employment-based immigrant petition who are caught in the quota backlogs to file for adjustment of status will be advanced to permit them to obtain the benefits of a pending adjustment.
- This is expected to impact about 410,000 people and will be implemented by regulation. Until the regulation is published, such individuals remain ineligible to file an I-485 Adjustment of Status Application.
- This may impact individuals of all nationalities in the EB-3 category, and Indian and Chinese nationals in the EB-2 category
- How can you prepare?
- Employers may wish to consider premium processing of pending I-140 petitions to ensure the approval notice is available when regulations are issued. Premium processing reduces the USCIS response time for an I-140 from 6 to 7 months (based on current data) to 15 calendar days. The response may be an approval, denial, or request for additional evidence. Premium processing incurs an additional USCIS filing fee of $1225.
- The I-485 filing will require birth, marriage and divorce certificates. It will also require certified copies of any interaction with law enforcement. Therefore, it would be a good idea to locate the documents which apply to you. If you are unsure of the format required by U.S. immigration, please see: http://travel.state.gov/content/visas/english/fees/reciprocity-by-country.html (enter your country of citizenship and scroll to the bottom of the reciprocity schedule)
- For additional information on documents required for the I-485 process, please see https://www.larrabee.com/immigration-law-faqs/documents-needed-for-permanent-residence/
Work authorization for H-4 spouses
- When the regulation is finalized, most likely in December or January, spouses of individuals in valid H-1B status will be able to apply for an Employment Authorization Document, which will be valid for employment with any U.S. employer, in any position.
- Most likely this will apply to those in H-4 status for those whose H-1B spouse has an approved I-140 immigrant visa petition.
- How can you prepare?
- If you are currently in F-1 status and your spouse is in H-1B status, you may consider filing a change of status to H-4. NOTE HOWEVER, that the details of eligibility are unknown, so you may wish to wait until further guidance is available prior to incurring the expense of the H-4 filing.
- If you want to apply for an H-4 EAD as soon as it becomes available, you are welcome to contact your LAC attorney now. We are maintaining a list of those who wish to file to expedite the filing when the regulations are issued.
Optional Practical Training
USCIS and ICE have been directed to
- Expand the degree programs eligible for OPT
- Extend the time period and use of OPT for STEM students and graduates
- Consider allowing a STEM OPT extension after a master’s degree even if the student’s prior degree is the only one which was in a STEM field
- This will be done by regulation. For general information, see http://www.dhs.gov/sites/default/files/publications/14_1120_memo_business_actions.pdf
- DHS will expand immigration options for foreign entrepreneurs who meet certain criteria for creating jobs, attracting investment, and generating revenue in the U.S., to ensure the system encourages them to the grow our economy. Certain investors will be able to be paroled into the U.S., or be granted parole in place if already in the United States, for job creation (no further details at this time). This will be done by regulation.
- Also, entrepreneurs, researchers, inventors, and founders will be eligible for I-140 Immigrant Visa Petitions in the National Interest Waiver category. This will be implemented through policy guidance.
AC-21 Portability Provisions for Individuals with Pending Adjustment of Status Applications
“Same or similar” will be clarified. No additional details are available at this time. For general information, see http://www.dhs.gov/sites/default/files/publications/14_1120_memo_business_actions.pdf
L-1B Intracompany Transferee in the Specialized Knowledge category
In recognition of the fact that “vague guidance and inconsistent interpretation of the term ‘specialized knowledge’ in adjudication L-1B visa petitions has created uncertainty” for employers, USCIS has been directed to issue the long-awaited L-1B policy memorandum which is supposed to provide “clear, consolidated guidance on the meaning of ‘specialized knowledge.’” No additional details are available at this time. For general information, see http://www.dhs.gov/sites/default/files/publications/14_1120_memo_business_actions.pdf
PERM Labor Certification Process
Recognizing that much has changed in the ten years since the PERM process was initially rolled out, including industry recruitment practices and needs, the DOL will review the PERM program and regulations with an eye toward modernizing the system and making it more responsive to changes in the U.S. workforce. The expected changes include:
- Changes to the recruitment process
- Modernization of the labor market test
- The possibility of premium processing
- The feasibility of addressing non-material errors without denial
No time frame is known for these changes.
A Presidential Memorandum was issued directing the agencies to modernize the visa system by developing recommendations to:
- Streamline and improve nonimmigrant and immigrant visa processing
- Ensure all of the immigrant visas that Congress provides for are used consistent with demand
- Modernize the information technology infrastructure underlying the visa processing system
We will continue to update you as additional information becomes available. If we can assist you in the meantime, please do not hesitate to contact you LAC attorney.