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“What You Need to Know About High-Skilled Immigration Changes in the President’s Executive Action”

By Peter F. Asaad

On Thursday, November 20, 2014, President Obama laid out his plan to use executive actions to alter the U.S. immigration system. Along with actions that may allow up to five million undocumented immigrants stay in the U.S. and obtain work permits, the President has a plan to help “make it easier and faster for high-skilled immigrants, graduates, and entrepreneurs to stay and contribute to our economy.”

Providing details, Secretary of the Department of Homeland Security (DHS), Jeh Charles Johnson, published a memorandum with directives for the U.S. Citizenship and Immigration Services (USCIS)  to enact the President’s new policies and regulations to support high-skilled businesses and workers by better enabling U.S. businesses to hire and retain highly skilled foreign-born workers, while providing these workers with increased flexibility to make career decisions.

1) All Applicants with an Approved I-140 Petition will be Permitted to File an I-485 Application when the Annual Statutory Limit of 140,000 is not Satisfied, Regardless of Priority Date

This is perhaps the most significant and largest scale change employers and employees will experience.

Currently, the State Department Visa Bulletin provides that only applicants with a priority date that precedes the monthly cut-off date can file an I-485 Application for Adjustment of Status.

The State Department Visa Bulletin will be reformulated to provide that all applicants with an approved I-140, regardless of their priority date, may file an I-485 application when the annual statutory limit of 140,000 is not satisfied.

Because these changes are accomplished through reformulation of the content and format of the Department of State’s Visa Bulletin and changes to USCIS regulation, this change will take time before it is implemented.

The impact is that a greater number of individuals will be able to benefit from a pending I-485 application.  Due to backlogs and insufficient green card numbers as well as the 7% per-country cap, particularly impacting nationals of India and China, thousands of individuals with an approved I-140 are subjected to seemingly endless wait-times before being able to file their I-485 which would enable them to obtain an Employment Authorization Document (EAD).  Indeed, the spouse also is able to obtain such an EAD — which is a critical benefit.  Also, the applicant and spouse get Advanced Parole for easier travel, often appreciated because it obviates the need to go through consular processing to revalidate their H-1B visa before travel back to the U.S.

Through changes in the content and format of the Department of State’s Visa Bulletin and changes to USCIS regulation, individuals will be permitted to file their I-485 applications when the Visa Bulletin reformulation is made giving them the benefits of a pending Application for Adjustment of Status and relieving them of their current hardship.

However, though these benefits would address the seemingly endless wait to file an I-485 application and obtain the corresponding benefits applicants, this is not “pre-registration.” In other words, once the annual statutory limit of 140,000 is satisfied with a sufficient number f I-485 applications in the queue, the Visa Bulletin will not permit further filings for that month — with the exception for those whose priority date precedes the cut-off date to ensure their priority in the queue.

The purpose of this Visa Bulletin reformulation is focused on helping ensure that Congress’ intent to issue 140,000 green cards is not left unsatisfied.  This problem is referred to as “unused numbers” which have plagued both USCIS and the Department of State.

Also, it is important to note that this Visa Bulletin reformulation will continue to require that — to be issued the green card — the priority date must precede the cut-off date thus ensuring that no more than the annual statutory limit of 140,000 green cards are issued.

2) H-4 Spousal Work Authorization

Though perhaps this is overshadowed by the benefits of the reformulation of the Visa Bulletin allowing hundreds of thousands to file their I-485 application that will be file-able without waiting for their Priority Date, the DHS proposed May 12, 2014 rule to extend work authorization to certain H-4 spouses of H-1B visa holders who have an  approved employment-based immigrant petitions (I-140) is expected within weeks — well before the Visa Bulletin reformulation.

The proposed rule reportedly will be finalized by January 2015.  December 2014 may be too soon to expect it.  Current law does not allow spouses of H-1B visa holders (H-4 dependent spouses) to apply for work authorization.

3) Green Card I-1-40 Portability

Through regulation that will take perhaps 6 months or more before it is implemented, USCIS will make portability of the green card from one employer to another, or promotion with the same employer, clearer and more predictable.

Under current law, the vague rule of having a “same or similar” occupational classification to which you must have before you can port to, and perhaps more so the lack of any process itself, makes porting a green card to another employer or promotion a risk.  Under the current rules, such commonplace employment changes are avoided by many for fear that it may jeopardize their ongoing application process.  To help eliminate uncertainty USSCIS will offer clear guidelines for career promotion and worker mobility as well as a process for requesting such changes before they are made.

4) Clarification of Standards for the L-1B Visa

To date, the L-1B visa program has suffered from unclear guidance and erratic interpretation by USCIS adjudicators and U.S. consular officers of the term “specialized knowledge.”  A lack of clear guidance has created uncertainty for companies seeking to temporarily transfer essential personnel from foreign operations to the U.S.

USCIS is expected to issue a long-awaited policy memorandum by January 2015 to provide guidance on the meaning of “specialized knowledge” and clarify L-1B eligibility standards for adjudicating officers. Secretary Johnson’s memorandum suggests that this L-1B policy guidance “will bring greater coherence and integrity to the L-1B program, improve consistency in adjudications, and enhance companies’ confidence in the program.”

5) More OPT Time for Certain Foreign Students

Through regulation that will take well over 6 months before it is implemented, the period for Optional Practical Training (OPT) for recent F-1 degree graduates will be expanded.  However this expansion is likely to apply only to graduates Science, Technology, Engineering and Mathematics (STEM) degree programs.  The regulations will also seek to strengthen the relationship between the student and the school during the OPT period.  Other changes also under consideration include allowing STEM OPT after the attainment of a master’s degree where only the first degree is in a STEM field as well expanding the eligible STEM fields.

6) The National Interest Waiver (“NIW”) for Foreign Entrepreneurs, Researchers, and Other Persons of Exceptional Ability

Through regulation that will take perhaps 6 months or more before it is implemented, USCIS will clarify and broaden the National Interest Waiver (NIW) standard to broaden eligibility beyond national in scope and to develop the category for entrepreneurs.  Currently, entrepreneurs are with few options despite being revered as a critically important group.  The NIW category is important in that one could obtain a greed card without the Department of Labor (DOL) PERM process, if the applicant proves their national importance to a substantially greater degree than other individuals with the same basic qualifications.  To date, the “national interest waiver” category has been underutilized and guidance is limited.

7) Department of Labor Review of PERM Program

The Department of Labor (DOL) will initiate a review of the PERM program and relevant regulations in an effort to speed up processing.  Before employers may petition for immigrant visas on behalf of most foreign-born workers, the Department of Labor (DOL) must certify that the employer conducted a test of the U.S. labor market and that, based on the results of a prescribed recruitment effort, no U.S. workers are qualified and/or available to perform the proffered job at the requisite wage.  Revised PERM rules are set to be finalized by Spring 2016. Meantime, the DOL will seek input on the following:

  • Options for identifying labor force occupational shortages and surpluses and methods for aligning domestic 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 timeframes and possibilities for premium processing, and;
  • Application submission and review process and feasibility for efficiently addressing nonmaterial errors.

We are closely monitoring the proposed changes.

Moreover, we provide input and our expertise to the government on these critical changes to help maximize their practical benefits.  We expect these changes to benefit the U.S. national interest by supporting high-skilled businesses and workers to better enable U.S. businesses to hire and retain highly skilled foreign-born workers.