After President Obama's announcement last night regarding his Immigration Accountability Executive Action, substantial information and guidance was issued by the White House, U.S. Citizenship & Immigration Services (USCIS), U.S. Immigration & Customs Enforcement (ICE), and the Department of Labor (DOL) regarding their plans to implement the Action. Following are brief summaries of the actions most likely to impact you or someone you may know, along with links to the agency memos and information. We will provide additional information about the implementation of these initiatives as it becomes available.

Please feel free to share this information with any colleagues, friends or family members who may benefit from these upcoming changes.  If you have questions, please contact our office at rs@rsllp.net, or contact one of our attorneys directly using the links to the left.

Highly-Skilled Workers and Entrepreneurs

USCIS has indicated that it will take the following actions. As all of these initiatives require changes to policy and regulation, we anticipate that it will take several months before any initiative is implemented.

• Modernizing the immigrant visa allocation system. Work with the Department of State to ensure that all immigrant visas authorized by Congress are issued to eligible individuals when there is sufficient demand for such visas, and to modify the Visa Bulletin system to more simply and reliably make determinations of visa availability. 
  
  The American Immigration Lawyers Association (AILA) has received word that this means the Federal Regulations will be modified to allow beneficiaries of approved I-140 petitions (and their dependent family members) to file I-485 applications to adjust status to permanent residence even when there is no visa number immediately available. Any regulatory change must be posted in the Federal Register with a comment period before it can be finalized and codified, so it will likely be some months (or longer) before anyone can benefit from this change.

• Providing clarity on adjustment portability. Issue long-awaited guidance regarding the definition of a "same or similar" position for I-140 portability purposes, which will allow certain qualified individuals with pending I-485 applications to move or change jobs more easily. At this time, it is not clear whether additional measures will be taken to allow for more portable work authorization for individuals with approved I-140 petitions, as has been rumored.

• Enhancing options for foreign entrepreneurs. Expand immigration options for foreign inventors, researchers and entrepreneurs who meet certain criteria for creating jobs, attracting investment, and generating revenue in the U.S., including a clarifications of the standards for the National Interest Waiver program and a new "parole" program for entering the U.S. prior to qualifying for a National Interest Waiver.

• Providing work authorization for spouses awaiting permanent residence. Finalize new rules to grant employment authorization to certain spouses of H-1B nonimmigrants who are in the process of pursuing employment-based permanent residence. This proposal has already undergone a comment period on the Federal Register, so it may be addressed sooner than some of the other initiatives. Note, however, that the proposed regulation limits H-4 work authorization to a select group of visa holders whose spouses have approved I-140 petitions or who have received H-1B extensions beyond the initial six years pursuant to AC21. It is unlikely that the final regulation will expand the eligible group significantly.

• Strengthening and extending on-the-job training for STEM graduates of U.S universities. Work with ICE to develop regulations for notice and comment to expand the degree programs eligible for OPT and extend the time period and use of OPT for STEM students and graduates. The regulations will also require that the OPT employment be more closely aligned with the degree program.

• Streamlining the process for foreign workers and their employers, while protecting American workers. Clarify guidance on the "specialized knowledge" required for temporary L-1 visas for foreign workers who transfer from a company's foreign office to its U.S. office.
  
  Additionally, DOL will take regulatory action to modernize the PERM labor certification program (the labor market test that is required of employers that sponsor foreign workers for immigrant visas while ensuring that American workers are protected), updating the recruitment requirements based on changes in technology and recruiting practices. DOL will also be considering adding an expedited processing option, as well as instituting a system to address non-material errors in applications. The DOL Fact Sheet can be found here.

Family Unification Initiatives

The broadest initiative of the Immigration Accountability Executive Action is an expansion of deferred action. Deferred action is a discretionary determination to defer immigration enforcement action against an individual for a period of time. It is a form of prosecutorial discretion that existed previously, and could be granted on a case-by-case basis. The Executive Action announced yesterday expands deferred action to people who meet certain criteria, subject to the discretion of the Department of Homeland Security.

• Expansion of Deferred Action for Childhood Arrivals (DACA). DACA was originally announced on June 15, 2012 and applies to certain people who came to the United States before the age of 16, have been continuously present in the U.S. since June 15, 2007, meet certain education or military service requirements, and were under age 31 on the date it was announced. USCIS will now expand the program to include those who came to the U.S. prior to January 1, 2010, and will also remove the age cap so that anyone meeting the other criteria would qualify. Additionally, approved applications for deferred action and work authorization will now be valid for three years instead of two. USCIS has indicated that it plans to begin accepting applications no later than 90 days from the date of the announcement. 

• Deferred Action for Parents of U.S. Citizens or Lawful Permanent Residents. The deferred action program will now also apply to individuals who have a U.S. citizen or lawful permanent resident son or daughter (of any age), have been continuously in the U.S. since before January 1, 2010, and are not enforcement priorities as laid out by Department of Homeland Security memos. This new program will be called Deferred Action for Parental Accountability (DAPA), and USCIS has indicated that it will begin accepting applications no later than 180 days from the date of the announcement. 

• Expansion of Eligibility for Provisional Unlawful Presence Waivers. Under current law, some individuals who do not have immigration status and who are the spouses and children of U.S. citizens and lawful permanent residents are not eligible to submit green card applications while in the U.S., but must leave the U.S. and apply for immigrant visas at consular offices abroad. Individuals who have been in the U.S. unlawfully for more than six months or one year and depart from the U.S. are barred from returning for three or ten years and would need to apply for waivers to be able to return earlier. Prior to 2013, individuals could not apply for these unlawful presence waivers until they were already outside of the U.S., resulting in long periods of separation from family members.
  
  In January 2013, DHS created a process that allowed spouses and children of U.S. citizens to apply for provisional unlawful presence waivers before departing the U.S., minimizing the amount of time they would be separated from family members. USCIS will revise the regulation to expand the group of people eligible to apply for provisional waivers while in the U.S. to include spouses and children of lawful permanent residents and adult children of U.S. citizens and lawful permanent residents. It will likely take several months or longer for the regulatory change to be finalized. 

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The Attorneys at Ross Silverman LLP