» Immigration Law Updates

Most of Mr. Obama's initiatives will take weeks, if not months, to come to fruition

November 21, 2014 | Written by Laura J. Mazel

On November 20, the President announced initiatives to fix our broken immigration system given the Republicans' failure to act on the Senate's comprehensive immigration bill passed in June 2013. Reiterating that our country will always be "a nation of immigrants," and emphasizing "accountability," Mr. Obama will push forward initiatives to protect certain undocumented immigrants as well as expand opportunities for highly skilled workers and employers. Below are highlights of initiatives the President will take on business immigration, according to interoffice agency memos and briefings already underway. 

Caution: While business immigration advocates and the high tech sector welcome the President's initiatives, we anticipate that it will take weeks, if not months, for entrepreneurs, employers and employees to be able to even apply for immigration benefits outlined in the initiatives.The initiatives need to be carried out through regulation or through interagency memoranda guidance.

• Increased visa opportunities for foreign investors, inventors, researchers and founders of startup enterprises wishing to conduct research and development and create jobs in the U.S.

• DHS has directed expansion of green card eligibility based on the national interest of the U.S. to encompass entrepreneurs, researchers and other key innovators. These individuals would not require employer sponsorship.
• The government is also is directed to promulgate regulations that would allow, on a case-by-case basis, these individuals to come to the U.S. and innovate, even before they may be eligible for the National Interest Waiver green card path, under the government's "significant public benefit" parole authority provisions. They would need to show they have substantial funding or otherwise have the "promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research."

• Help With Long Green Card Queues, Known as Visa Retrogression. Both Republicans and Democrats agree that it is taking too long for highly skilled employees to obtain a green card. For example, an Indian national with a Master's degree or the equivalent may have to wait over 9 years to obtain a green card through employer sponsorship. The DHS has directed that government agencies make sure all numbers are used each year, and more importantly, to analyze and possibly determine that a primary green card applicant's family members not be counted towards the limited 140,000 annual quota for employment-based green cards. This could help diminish excessively long waiting periods.

• PERM labor certification rules. In order to obtain green cards for many high tech and highly skilled employees, employers must undertake a complex sponsorship process dealing with the U.S. Department of Labor and then the USCIS. The government will propose a rule making to "modernize" the PERM program.

• Pre-registration for Adjustment of Status. The government will propose a rule to allow individuals with an approved employment-based immigrant (I-140) petition who are caught in the quota backlogs 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 may even allow work authorization for spouses, as well as the opportunity to change employers.

• Spouses of H-1B workers who are far enough along in the green card process should be eligible for work authorization. The White House anticipates that the government will finalize a proposed rule granting work authorization to H-4 spouses of H-1B workers as early as December or January. See our earlier analysis of the proposed rule.

• U.S. STEM (science, technology, engineering, and mathematics) degree holders may obtain increased work authorization. The government will propose a rule to increase the length of time U.S. STEM degree holders will have work authorization. Currently, U.S. STEM degree holders working for employers who participate in the E-Verify employment verification program are granted up to a total of 29 months' work authorization post-graduation.

• L-1B specialized knowledge guidance. Employers and counsel have long complained that government adjudicators are creating stricter standards than exist under existing rules for transferring specialized knowledge employees from a company's subsidiary, parent or affiliate abroad to the U.S. This may improve adjudications. 

While the Department of Homeland Security top officials clearly have been working with the White House and in a November 20 memo directed new policies and regulations, we anticipate several weeks, if not months, before they will be implemented. We are pleased that the President has listened to employers' and business immigration advocates' voices regarding entrepreneurs, researchers, innovators and highly skilled employees. 

We will continue to update our website with developments. When regulations become available, we will analyze immigration impacts and opportunities for our clients and will reach out to them.

We wish all a wonderful upcoming Thanksgiving.