Executive Action on Immigration
Impact on Employment-Based Petitions
President Obama announced changes to the United States’ immigration policy via executive action on November 20, 2014. The President outlined several changes to business immigration processes and procedures. These changes, outlined below, contain vague guidelines and uncertain timelines, especially compared to changes in family-based immigration law. These executive actions will come into place upon the issuance of necessary guidance and regulations, and almost none of the below changes have an estimated implementation date.
Initially, foreign entrepreneurs who may not qualify for a National Interest Waiver will be able to be paroled into the U.S., or granted parole in place if already in the U.S. to encourage job creation if they 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. Changes to the investor programs will be done by regulation.
USCIS will also clarify the standards for issuing National Interest Waivers to foreign inventors, researchers, and founders of start-up enterprises, which will be implemented through policy guidance.
Pending Adjustment of Status Applications
Foreign nationals with approved employment-based immigrant petitions who are waiting for their adjustment of status applications to become current will be able to pre-register for adjustment of status to obtain benefits of a pending adjustment. This change will be done by regulation, and is expected to impact about 410,000 applicants. This will enable foreign nationals who are eligible to apply for adjustment of status but without a current priority date to file for adjustment and receive work authorization and advanced parole.
Immigrant Visa Availability
USCIS and the Department of State will also work to ensure all immigrant visas authorized to be issued by Congress are issued where demand exists, as the U.S. has failed to issue all authorized visas available for fiscal years in the past. This will reduce the difficulty of temporary visas filling the time gap for skilled workers whose visas may be expiring, but whose adjustment of status applications are pending. A Presidential Memorandum will be released containing further details about the executive action. The Memorandum will determine whether visa numbers unused in the past will be currently available, which will make substantial numbers of visas available for persons whose adjustment of status applications are currently pending.
The visa bulletin system will additionally be modified to make it simpler and clearer to determine when immigrant visas are available to applicants during the fiscal year.
In 2015, naturalization applicants will be able to use credit cards to pay the application fee, and USCIS will assess potential partial fee waivers.
USCIS will provide guidance on what is “specialized knowledge” for L-1B petitions, which are available to foreign nationals who have worked for at least one year for a foreign company with a qualifying relationship to the petitioning U.S. company.
Additionally, USCIS will expand the definition of STEM, which traditionally indicates a degree in the field of science, technology, engineering, or math.
The American Competitiveness in the Twenty-First Century Act’s (“AC21”) “same or similar” language will be clarified. This law enables an approved I-140 petition to remain valid even when a foreign national changes jobs, if their I-485 has been filed and pending for 180 days or more, and the new job is in the “same or similar occupational classification” as the job for which the certification or approval was already made.
H-4 Work Authorization
Work authorization (Employment Authorization Document cards) will be available to the spouses of H-1B visa holders in H-4 status where the H-1B visa holder has been approved to receive lawful permanent resident status based on employer sponsorship. This regulation was proposed in May 2014, and will likely be finalized in December 2014 or January 2015.
Expansion of OPT
USCIS will work with Immigration and Customs Enforcement (“ICE”) to develop regulations for notice and comment to expand the length of time available in Optional Practical Training (“OPT”) for STEM graduates. OPT enables students in valid F-1 status to work in an area related to their field of study. Extension of available OPT time will be done by regulation. USCIS is also considering allowing STEM OPT where the foreign national has obtained their first degree in a STEM field but their post-Master’s degree is not in a STEM field.