While most of the media attention concerning President Obama’s November 20 speech on immigration issues focused on the deferred action plan for certain undocumented immigrants, the White House also announced a number of significant business immigration initiatives.
Pre-Registration for Adjustment of Status and Enhanced Worker Portability
This was the big surprise of the night.
Individuals with an approved employment-based immigrant petition (Form I-140) who are caught in the green card quota backlogs will be able to pre-register for adjustment of status to obtain the benefits of a pending adjustment application. Presumably this will include the ability to secure an EAD card and advance parole travel authorization for the employee and dependents. This is expected to impact about 410,000 people and will be implemented by a formal regulation.
A memorandum released by Department of Homeland Security (DHS) Secretary Jeh Johnson stated that DHS will look to amend it regulations to “insure that approved, long standing visa petitions remain valid in certain cases where [the foreign national employees] seek to change jobs or employers.”
If adjustment of status (AOS) portability is expanded to include those who qualify for pre-registration, the implications for the businesses that sponsor foreign national employees for PERM labor certification are enormous. First, a company could promote an employee or transfer them to a new job location without having to file a second PERM application. Secondly, the foreign national employee would be able to change employers so long as the new job is the “same or similar” to the position for which a labor certification was obtained.
Secretary Johnson announced that DHS will issue policy guidance clarifying the “same or similar” standard. His memorandum included the following language: “This guidance should make clear that a worker can, for example, accept a promotion to a supervisory position or otherwise transition to related jobs within his or her field of endeavor. By removing unnecessary restrictions to natural career progression, workers will have increased flexibility and stability, which would also ensure a more level playing field for U.S. workers.”
Certain “foreign inventors, researchers, and founders of start-up enterprises wishing to conduct research and development and create jobs in the U.S.” 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. This will be done by regulation. Also, this group will be eligible for national interest waivers. This will be implemented through policy guidance.
L-1B Specialized Knowledge Workers
DHS will soon release a policy memorandum that will “provide clear, consolidated guidance on the meaning of specialized knowledge.” We hope this guidance will reign in the arbitrary and capricious decisions coming out of the USCIS Service Centers in recent years as the denial rate for L-1B petitions has skyrocketed.
Work Permits for H-4 Visa Holders
A regulation will be finalized, probably in December or January, that will allow H-4 spouses of H-1B employees to apply for an Employment Authorization Document (EAD card).
Optional Practical Training (OPT)
The length of time in OPT for STEM graduates will be expanded and the relationship between the student and the school will be strengthened. Other changes, such as allowing STEM OPT after receipt of a master’s degree where only the first degree is in a STEM field is under consideration. The number of degree programs eligible for OPT may be expanded. This will be done by regulation.
PERM Labor Certification
A full rulemaking will be undertaken to modernize the PERM program.
Visa Modernization. A Presidential Memorandum will be issued directing federal agencies to look at modernizing the visa system with a view to making optimal use of the numbers of visa available under law. Issues such as whether dependents should be counted against the employment based green card quota and whether past unused visa numbers can be recaptured will be included in this effort.
None of the initiatives listed above have been implemented and no applications can be filed at this time. It could be weeks or even months before policy guidance or formal regulations are published. We will advise our clients as soon as any additional information is available.