Nov 25, 2014

Obama’s Executive Action – Benefits for Employment-Based Documented Immigrants

Much of the attention has been focused on the impact of President Obama’s Executive Actions on Immigration for the undocumented.  However, there are significant gems for the documented, especially for employment-based immigrants who are already in process.

First, foreign nationals with an approved employment-based immigrant petition (I-140) who are caught in the quota backlogs will be able to “pre-register” their permanent resident applications (I-485).  In essence, they’ll be able to go ahead and file the I-485 applications to obtain the benefits of having a pending adjustment of status application – employment authorization cards for themselves and their dependents, advance parole travel permission, and the ability to take promotions and advance their careers (related to this last point, the AC21 portability language of “same or similar occupation” will be clarified).  This will be of tremendous benefit especially to nationals of India and China, and overall is expected to impact 410,000 people.  This will be done by regulation, so it will take several months to go through the government approval process.

Next, the long-awaited regulation providing for the issuance of employment authorization documents (EADs) for H-4 spouses will be finalized.  This is expected most likely in December 2014 or January 2015.

Additionally, there will be a Presidential Memorandum directing the agencies to look at modernizing the immigrant visa system, with a view toward making optimal use of the number of visas available under the law.  For example, whether derivatives should be counted toward the visa allotment and whether past unused visa numbers can be recaptured and used.  This could have a significant impact on reducing the employment-based immigrant visa backlogs.  The recommendations are to be developed within 120 days of November 21, 2014.

In the employment-based nonimmigrant visa context, there are a few areas impacted by the Executive Action.  Guidance on the L-1B specialized knowledge intra-company transferees will be released.  The L-1B visa category has become almost unusable due to the narrow and strict scrutiny placed on such petitions by the immigration service (USCIS) and U.S. Embassies.  Hopefully the new guidance will restore the L-1B visa back to its original purpose and benefit.

For F-1 students, the length of employment authorization time in Optional Practical Training for STEM graduates will be expanded.  Also under consideration is the authorization of STEM OPT for post-master’s graduates where only the first degree is in a STEM field.  These changes will be done by regulation, and thus will take several months for approval.

Finally, there are a couple of provisions to encourage the immigration of foreign entrepreneurs – inventors, researchers and founders of start-up enterprises.  Such entrepreneurs will be able to be paroled into the U.S., or be granted parole-in-place if already in the U.S., for job creation.  This will be done by regulation and will take several months for approval.  Additionally certain entrepreneurs will be eligible for processing of an immigrant visa with a national interest waiver of the labor certification process.  This will be implemented through policy guidance, which is generally a faster process than the regulations process.

So there is much to be gained by the President’s Executive Action on Immigration by foreign national professionals, skilled workers, and entrepreneurs who are already in the employment-based U.S. immigration process, as well as those who are interested in immigrating to the U.S. to create businesses and jobs.

More details on these initiatives will come in the following weeks and months.  We’ll keep you informed as they do.  As always, don’t hesitate to contact any of the immigration professionals at SGR Immigration with any questions or concerns.

This client alert is intended to inform clients and other interested parties about legal matters of current interest and is not intended as legal advice.