Obama Immigration Order to Impact Millions, Includes Provisions for High-Skilled Workers

By Laura D. Francis

Nov. 21 — President Barack Obama Nov. 20 unveiled a large-scale immigration plan that includes several measures designed to keep highly skilled immigrant workers in the U.S. as well as deportation protection for an estimated 5 million undocumented parents of U.S. citizens and lawful permanent residents.

“Today our immigration system is broken and everybody knows it,” Obama said in an evening address to the nation. “It's been this way for decades, and for decades we haven't done much about it.”

“I continue to believe that the best way to solve this problem is by working together to pass that kind of common-sense law” that was passed by the Senate in June of 2013, the president said.

However, Obama blamed House Republicans for refusing to even allow a “simple yes or no vote” on the measure.

The president's speech focused on what will likely be the most controversial portion of his executive order, a plan to provide deferred action, for three-year periods, to the undocumented parents of U.S. citizens and lawful permanent residents who have been in the U.S. at least five years and who agree to pay taxes and pass a criminal background check.

According to U.S. Citizenship and Immigration Services, which will administer the program, some 4.9 million individuals stand to benefit from this action.

Several Employment Changes

But flying under the radar are several administrative changes aimed at highly skilled immigrant workers and entrepreneurs, including increased job portability for immigrants with approved employment-based petitions but who can't get a visa because of annual caps, expansion of the optional practical training program, a review of the permanent labor certification program, and guidance on L-1B intracompany transferee visas for “specialized knowledge” workers.

The USCIS also is about to publish a final rule granting work authorization to the H-4 dependent spouses of H-1B highly skilled guestworkers who are in the process of obtaining lawful permanent residence through employment.

A proposed rule, released May 9, would provide employment authorization documents to the approximately 97,000 spouses of H-1B workers who are the beneficiaries of an approved employment visa petition, as well as the spouses of H-1B workers whose stay in the U.S. has been extended under the American Competitiveness in the 21st Century Act (AC21).

Employment-Based Green Cards

In a Nov. 20 memorandum, Homeland Security Secretary Jeh Johnson also directed that the USCIS work with the State Department to ensure that all statutorily authorized green cards actually are issued to eligible individuals when there is sufficient demand. He added that the USCIS and the State Department should work to improve the system for determining when green cards are available to applicants during the fiscal year.

In addition, Johnson said the USCIS should consider issuing regulations aimed at providing stability for the beneficiaries of employment-based visa petitions. Many beneficiaries wait years for a visa because of annual caps on employment-based green cards as well as per-country caps.

Specifically, Johnson said, the USCIS should consider changing its regulations to ensure that immigrants' employment-based visa petitions remain valid when they change jobs or employers.

Homeland Security Secretary Jeh Johnson said the USCIS should consider changing its regulations to ensure that immigrants' employment-based visa petitions remain valid when they change jobs or employers.

Along the same lines, the DHS secretary said the USCIS must issue a policy memorandum providing additional guidance on what qualifies as a “same or similar” job that the beneficiary of an approved petition can accept while awaiting a visa. He said uncertainty as to what constitutes a “same or similar” job has prevented many immigrant beneficiaries from changing jobs out of fear that doing so would void their approved petitions.

Johnson said the new USCIS guidance should make clear that a worker can accept a promotion or take related jobs “within his or her field of endeavor” and still maintain a valid petition.

OPT Expansion

The memo additionally directed Immigration and Customs Enforcement to issue new regulations governing the optional practical training program, which allows foreign graduates of U.S. colleges and universities to work for up to 29 months in their field of study post-graduation.

In particular, the memo called for expansion of the degree programs eligible for OPT, as well as the length of time foreign graduates can spend in OPT status, for students pursuing science, technology, engineering and mathematics professions.

Furthermore, the OPT program should require stronger ties to degree-granting institutions, and OPT employment should be consistent with U.S. labor market protections to ensure that U.S. workers in related fields aren't adversely affected, Johnson said.

Johnson's memo also called for the USCIS to issue a policy memorandum that “provides clear, consolidated guidance on the meaning of ‘specialized knowledge' ” in the context of L-1B visas, which immigration attorneys have sought for years.

Immigrant Entrepreneurs

Finally, the memo directed the USCIS to take two actions related to immigrant entrepreneurs. First, the USCIS should clarify the standard by which immigrant entrepreneurs can obtain a national interest waiver, which allows certain immigrants to self-petition for green cards without an employer sponsor if their admission to the U.S. is in the national interest.

In addition, Johnson instructed the USCIS to propose a program to allow the agency to grant parole, on a case-by-case basis, to inventors, researchers and founders of startup companies who have been “awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.”

The parole authority, contained in Section 212(d)(5) of the Immigration and Nationality Act, allows for the admission of certain immigrants through other than normal channels if it would promote a “significant public benefit.”

Johnson said the USCIS's regulation should include income and resource thresholds for granting parole to ensure that beneficiaries won't be eligible for federal public benefits or premium tax credits under the Affordable Care Act.

Review of PERM Program

The executive action, however, isn't limited to the DHS.

In a Nov. 20 fact sheet, the Labor Department said the permanent labor certification (PERM) program hasn't been “comprehensively examined or modified” in its 10 years of existence, and the agency now will do so.

“As part of this review, the Department will seek input on the current regulation, including how it could be modernized to be more responsive to changes in the national workforce,” the DOL said.

Specifically, the DOL will seek input on—options for identifying labor force occupational shortages and surpluses and methods for aligning U.S. worker recruitment requirements with demonstrated shortages and surpluses; 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; ranges of case processing time frames and possibilities for premium processing; and application submission and review process and feasibility for efficiently addressing nonmaterial errors.

The DOL added that its Employment and Training Administration may examine other aspects of the PERM program to “further align the program design with the objectives of the U.S. immigration system and needs of workers and employers, and to enhance the integrity of the labor certification process.”

Certification for U, T Visas

The DOL's Wage and Hour Division in a separate fact sheet also said in 2015 it will expand its support of victims of human trafficking and other crimes who are seeking immigration relief through the DHS.

The DOL explained that U visas—offered to certain crime victims who assist in investigation and prosecution—require that a law enforcement agency certify that they meet the requirements. Although a similar certification isn't required for T visas for victims of human trafficking, the DOL said such certifications are “strongly encouraged.”

According to the DOL, the WHD will add three crimes for which it will complete U visa certifications—extortion, forced labor and fraud in foreign labor contracting. The WHD also will begin issuing certifications to T visa applicants, the agency said.

In a third fact sheet, the DOL announced the formation of an interagency working group to help federal agencies enforce labor and employment laws regardless of workers' immigration status. According to the DOL, many workers fear asserting their workplace rights, and some employers exploit workers' immigration status to keep them from doing so.

The working group—made up of the DOL, DHS, Justice Department, Equal Employment Opportunity Commission and National Labor Relations Board—will seek to ensure workplace enforcement without fear of retaliation, ensure that law enforcement agencies aren't exploited by those who wish to undermine workers' protection, and ensure that federal labor, employment and immigration laws are enforced consistently.

Another large part of Obama's executive action is the expansion of the deferred action for childhood arrivals program, as well as the creation of a DACA-style program for the undocumented parents of U.S. citizens and lawful permanent residents.

DACA Expansion

Another large part of Obama's executive action is the expansion of the deferred action for childhood arrivals program, as well as the creation of a DACA-style program for the undocumented parents of U.S. citizens and lawful permanent residents.

DACA, originally launched in 2012, grants relief from deportation and work authorization for a renewable, two-year period to undocumented immigrants who came to the U.S. as children and meet certain criteria.

Under a Nov. 20 memo from Johnson, the program now will grant deportation relief and work authorization for three years instead of two. According to the USCIS, the three-year period will be applied to pending initial and renewal DACA applications and those received after Nov. 20. The USCIS said it is exploring means of extending approved two-year work authorizations for a third year.

Johnson's memo also eliminated what had been an age cap of 31, so that if the applicant meets the other criteria, his or her current age doesn't matter. Furthermore, the memo moved the date-of-entry requirement. DACA applicants previously had to prove they had been in the U.S. since June 15, 2007, but applicants now must show they have been in the U.S. since Jan. 1, 2010.

Deferred Action for Parents

In addition to the DACA expansion, the memo created a new deferred action program, modeled on DACA, for the parents of U.S. citizens and lawful permanent residents.

Criteria for the deferred action for parental accountability (DAPA) program include—continuous residence in the U.S. since before Jan. 1, 2010; physical presence in the U.S. on Nov. 20 and at the time the deferred action application is submitted; no lawful status as of Nov. 20; not falling within one of the DHS's new enforcement priorities; and not having any other characteristics that would make deferred action inappropriate.

Johnson said applicants approved for three years of deferred action under DAPA also will be granted work authorization. The USCIS said it will begin accepting applications in about 180 days.

Like DACA, DAPA will carry a $465 fee with no option for fee waivers and very limited fee exemptions, the memo says.

The memo directed ICE to identify persons in custody and newly encountered immigrants who meet the listed criteria and may be eligible for deferred action. ICE also must review pending removal cases and seek administrative closure or termination of those cases if the individuals meet the deferred action criteria, and should establish a process to allow individuals in removal proceedings to identify themselves as deferred action candidates.

The USCIS said it won't share information provided in the DAPA application process with ICE or Customs and Border Protection for immigration enforcement purposes in most cases, although information may be shared with law enforcement for fraud or national security reasons.

Enforcement Priorities Realigned

In another Nov. 20 memo, Johnson also rescinded 2011 memoranda issued by then-ICE Director John Morton that set up ICE's prosecutorial discretion policy. The new memo, effective Jan. 5, 2015, sets three immigration enforcement priorities, ranking them according to the amount of resources that should be devoted to each.

The first priority is threats to national security, border security and public safety. The second is individuals who have committed certain misdemeanors and new immigration law violators, while the third is “other immigration violations,” defined as those who are issued a final order of removal on or after Jan. 1, 2014.

Notably, individuals convicted of felonies and misdemeanors for which immigration status is an essential element of the offense aren't considered priorities in any of the three categories.

Johnson Nov. 20 additionally discontinued the controversial Secure Communities program, which set up certain information sharing between state and local law enforcement and ICE, replacing it with a new program.

Other memos issued by Johnson Nov. 20 establish new policies for “parole-in-place” and deferred action for certain relatives of members of the military; ask for additional guidance clarifying that individuals who leave the U.S. on advance parole haven't “departed” the country and so aren't subject to the three- and 10-year bars to readmission; call for USCIS regulations expanding the provisional waiver program for relatives of U.S. citizens and lawful permanent residents; direct an overhaul of ICE's personnel system; create new border security policies; and implement policies to promote and increase access to U.S. citizenship.

Republicans: Immigration Bills Off Table

The president's action drew sharp criticism from congressional Republicans, who said his unilateral action has obliterated any hope for a legislative overhaul of the immigration system.

House Speaker John Boehner (R-Ohio) told reporters Nov. 21 that he had warned the president that by taking unilateral action, “he was making it impossible to build the trust necessary to work together.” Obama has “chosen to deliberately sabotage” any bipartisan legislation, and “he's damaging the presidency itself,” Boehner said.

Obama has “chosen to deliberately sabotage” any bipartisan legislation, and “he's damaging the presidency itself,” House Speaker John Boehner (R-Ohio) said.

“In the days ahead the people's House will rise to this challenge. We will not stand idle as the president undermines the rule of law in our country and places lives at risk. We'll listen to the American people, we'll work with our members and we'll work to protect the constitution of the United States,” he said.

Senate Minority Leader Mitch McConnell (R-Ky.) in a Nov. 20 statement issued ahead of Obama's announcement added that, if the president “acts in defiance of the people and imposes his will on the country, Congress will act. We’re considering a variety of options. But make no mistake. When the newly elected representatives of the people take their seats, they will act.”

House Judiciary Committee Chairman Bob Goodlatte (R-Va.) Nov. 20 called the president's action “perplexing and alarming” and said it “ignores the will of the American people and flouts the Constitution.” He announced Nov. 21 that his committee will hold a hearing on the matter Dec. 2.

“While there are varying opinions on how to amend our immigration laws, one thing is clear: the President does not have the authority to change our immigration laws by executive decree,” Goodlatte said in a Nov. 20 statement. “It's disappointing that President Obama has refused to work with the new men and women Americans elected to represent them in Congress.”

Advocates Renew Calls for Legislation

Immigration advocacy groups generally praised Obama's action, but many said it didn't go far enough and called for Congress to overhaul the immigration system legislatively.

Leslie Holman, president of the American Immigration Lawyers Association, in a Nov. 20 statement said she is “proud” of the president for taking action, but pointed out that it is a “stopgap measure” that is neither comprehensive nor permanent.

“By extending relief and work authorization to an estimated 4 million people, the Obama Administration will help prevent unscrupulous employers from using unprotected workers to drive down wages and conditions for all workers in our country,” AFL-CIO President Richard Trumka said in a Nov. 20 statement. “Although this fix will be temporary, it will allow millions of people to live and work without fear, and afford them the status to assert their rights on the job.”

U.S. Chamber of Commerce President and Chief Executive Officer Thomas Donohue Nov. 20 said an executive action “cannot adequately fix our broken immigration system,” and it raises “important legal and constitutional questions.” Instead, he said, the president and lawmakers of both parties should “enact commonsense measure to provide the American economy with the workers it needs at all skill levels, while better securing our borders and dealing with undocumented immigrants.”

Similarly, the Council for Global Immigration and the Society for Human Resource Management in a joint Nov. 20 statement said they appreciate the president's action but “creating a system that works for employers requires the President and Congress to work together.”

John Feinblatt, the chairman of the Partnership for a New American Economy, said in a statement Nov. 20 that the president's action “may alleviate some of the problems with our broken system, but only Congress can address their root causes—and create a modern immigration system that secures our borders and fosters economic growth.”

Obama: ‘Debate Is About Something Bigger.'

For his part, Obama in his Nov. 20 speech renewed his call for Congress to overhaul the immigration system.

“I want to work with both parties to pass a more permanent legislative solution,” he said, adding that the moment he signs such a measure passed by Congress, the executive action no longer will be in effect. “Americans are tired of gridlock” and want “a higher purpose,” Obama said.

“We have to remember that this debate is about something bigger. It's about who we are as a country and who we want to be for future generations.”

To contact the reporter on this story: Laura D. Francis in Washington at lfrancis@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

Text of the DHS memos is available at http://www.dhs.gov/immigration-action?utm_source=hp_feature&utm_medium=web&utm_campaign=dhs_hp, and the DOL fact sheets at http://www.dol.gov/dol/fact-sheet/immigration.

 


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