The Impact of the President’s Executive Action Upon U.S. Employers

On Thursday evening, November 20, 2014, President Obama announced that he was taking executive action that will primarily shield up to five million illegal immigrants from deportation. U.S. employers will benefit from business-related portions of the executive action, but these provisions will be implemented gradually as regulatory review is necessary in many cases. Ogletree Deakins will be conducting a webinar on December 2, 2014, to discuss the president’s action in more detail. To register for this timely program, click here.

U.S. employers will experience the impact of executive action in several ways:

Undocumented Workers Will Receive Employment Authorization Documents

• Four to five million people will become eligible to apply for employment authorization to lawfully work in the United States. U.S. employers that employ these workers will need to ensure compliance with Form I-9 employment verification requirements.

The Benefit of Adjustment of Status to Employment-Based Immigrants Will Advance

• Beneficiaries of approved employment-based immigrant visa petitions (and their eligible family members) may become eligible to file for adjustment of status to permanent residence sooner and obtain interim benefits, such as employment authorization and travel documents. Long-awaited guidance on job changes that occur during the pendency of the green card process is also expected. Additionally, employment authorization for certain H-4 spouses of H-1B employees who have reached certain green card processing milestones is also likely to be provided.

Foreign Entrepreneurs Will Have Increased Immigration Options and the National Interest Waiver Category Will Expand

• The U.S. Department of Homeland Security (DHS) will expand immigration options for foreign entrepreneurs who meet certain criteria for creating jobs, attracting investment, and generating revenue in the United States. The proposal would include expanding national interest waiver petitions to entrepreneurs, researchers, inventors, and founders. The U.S. Citizenship and Immigration Services (USCIS) will also propose a program that will permit the granting of advance parole travel documents to inventors, researchers, and founders of start-up companies who have not yet qualified for a national interest waiver.

The STEM-based Optional Practical Training Program Will Expand

• DHS will propose changes that will expand and extend the use of the existing Optional Practical Training (OPT) program. These changes will benefit foreign students studying science, technology, engineering, and mathematics (STEM) at U.S. universities. These changes should allow employers to employ highly skilled workers beyond the current maximum of 29 months in the OPT program.

Guidance on L-1B Intra-Company Transferee Petitions Will be Clarified

• DHS is expected to clarify its guidance on temporary L-1B specialized knowledge visas for foreign workers who transfer from a company’s foreign office to its U.S. office. It is hoped that the forthcoming guidance will result in more predictable adjudications by the government.

The PERM Labor Certification Process Will be Modernized

• The U.S. Department of Labor (DOL) plans to take regulatory action to modernize the PERM labor market test that is required of many employers that sponsor foreign workers for immigrant visas. Specifically, the DOL will seek input on the following:

• • options for identifying labor force occupational shortages and surpluses and methods for aligning domestic worker recruitment;
  • methods and practices designed to modernize U.S. worker recruitment requirements;
  • processes to clarify employer obligations to ensure PERM positions are fully open to U.S. workers;
  • the possibility for premium processing of applications; and
  • the introduction of a process for efficiently addressing nonmaterial errors.

The Immigrant Visa System Will be Reformed

• Finally, the administration will direct federal agencies to look at modernizing the visa system in order to make more efficient use of the current allotment of immigrant visas. More immigrant visas may become available based upon decisions on issues such as whether dependent visa beneficiaries should be counted and whether past unused visa numbers can be recaptured.

The president’s executive action offers employers the possibility of gradual improvements in the processing of employment-based immigration matters as government agencies reexamine their practices.