On November 20, 2014, President Barack Obama addressed the nation on the issue of immigration reform. Utilizing executive action, President Obama proposed a three-part plan. These are detailed below.
To be clear, on the employment based immigration changes, nothing is different today. All of the proposed changes will require regulations or agency action, which is expected to take several months. Regulations have to be drafted, finalized, sent out to the public for review and comment, and then the comments are compiled and responded to, all before the regulations are effective. The list below is not comprehensive, as much of what is being proposed is still being developed.
- Additional resources will be provided for law enforcement personnel at the U.S. borders.
- Undocumented immigrants will be able to remain in the United States on a temporary basis if: they have been in the United States for over five years, they have a child in the United States who is a U.S. Citizen or Lawful Permanent Resident, and they register and pass a criminal background check, and pay a fee.
- Make it easier for highly skilled workers and entrepreneurs to work and stay in the United States. Below are some of the proposed changes:
- Visa Modernization. The relevant agencies will be directed 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 derivatives should be counted and whether past unused visa numbers can be recaptured will be included in this effort.
- Foreign Entrepreneurs. Certain investors will have an easier time coming to the U.S., and will have additional avenues for green cards under the existing green card categories and will be eligible for national interest green card applications. This will be implemented through policy guidance. More regarding this green card process is on the Clark Hill website.
- Pre-registration for Adjustment of Status. Individuals with an approved employment-based immigrant petition who are caught in the quota backlogs will be able to pre-register for adjustment of status to obtain the benefits of a pending adjustment. This is expected to impact about 410,000 people. This will be done by regulation. More regarding this wait time is on the Clark Hill website.
- L-1B regulations. The L-1B visa has been a problem for U.S. employers, when it comes to proving “specialized knowledge.” This would be done by regulation. More regarding this visa is on the Clark Hill website.
- H-4 EADs. Spouses of H-1B workers have H-4 visas. This regulation would allow H-4 spouses to secure a work card. The regulation has already gone through the notice and comments period. The regulation is expected to be finalized, probably in December or January. More regarding this visa is on the Clark Hill website.
- Optional Practical Training (OPT) for F-1 Visa Students. The length of time in OPT for STEM (Science, Technology, Engineering and Math) graduates will be expanded and the relationship between the student and the school will be strengthened for this period. Other changes, such as allowing STEM OPT post-master’s degree where only the first degree is in a STEM field is under consideration. This will be done by regulation. More regarding this visa is on the Clark Hill website.
- PERM Green Card Improvements. A full rulemaking will be undertaken to modernize the PERM green card program. More regarding this process is on the Clark Hill website.
Additional resources are at: http://www.dhs.gov/immigration-action.
What is Clark Hill’s take on the employment based immigration reforms? We support the Administration’s goals of providing greater flexibility for employers and reduced costs, and greater certainty and more flexibility for the foreign nationals and their families.
The Clark Hill Immigration team will continue to issue updates on this matter as more information becomes available.
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