BUSINESS IMMIGRATION LAWYER'S POINT OF VIEW: On November 20, 2014, President Obama’s Executive Action announcement on immigration was followed by multiple memorandums from the office of the Secretary of the Department of Homeland Security (DHS). It will take time for DHS to issue specific guidance on how the executive action will be implemented, so stay tuned for details. Meanwhile, we have put together a summary of what the President’s Executive Action means for businesses.
I. Heightened Immigration Enforcement – More Worksite Enforcement Against Employers
DHS will be implementing a new enforcement strategy. We will be seeing less focus on detaining and removal/deportation of undocumented immigrants without criminal records. However, some other priorities, such as worksite enforcement against employers, remain unchanged.
WHAT DOES IT MEAN FOR EMPLOYERS? MORE WORKSITE ENFORCEMENT: With more free time on their hands, DHS officers may pursue other enforcement priorities, such as worksite enforcement. In recent years, DHS has seen a lot of success in investigating and prosecuting employers for alleged immigration violations because most employers do not view themselves as potential targets. Worksite enforcement has also proven lucrative for DHS, with employers paying large amounts of money in civil fines and criminal forfeitures.
II. Two Kinds of Work Permits for Immigrant Workers Currently Employed in the U.S. Without Employment Authorization
By various estimates, there are approximately 11 million undocumented workers in the United States. There are no legal visas or work permits available to employers to legally hire the workers (Congress forgot to provide for a legal way to hire foreign born meat-cutters and overnight office cleaners, among other occupations). As a result, millions of undocumented workers are currently employed without work authorization. Their U.S. employers are at risk of violating Immigration Reform and Control Act, which prohibits employment of unauthorized workers and calls for a cumbersome system of immigration compliance. Employers, owners, executives, management and supervisors are at risk of civil and criminal prosecution, which in the past years resulted in consequences up to and including jail time. The government estimates that about 5.5 million of undocumented workers may be able to obtain work permits under the new Execution Action. Employers will now be able to hire these workers legally. Employers who have lost workers in I-9 audits may be able to hire some workers back as soon as workers obtain work permits. Employers will see workers obtaining work permits within about three months of when the regulations are issued by DHS in the following categories:
1. More Work Permits for Young Immigrant Workers – Expanding DACA
DHS is increasing the number of work permits allotted for the youthful undocumented immigrant population through the expansion of Deferred Action for Childhood Arrivals (DACA). These work permits will cover young workers currently working without employment authorization in the United States. Existing DACA is a program that granted work permits to those applicants who were younger than 31 years old on June 15, 2012; had entered the U.S. before June 15, 2007 as children under the age of 16; and who meet educational and public safety criteria. The announced DACA expansion removes the age cap and moves back the date-of-entry requirement. DACA eligibility will now apply to all immigrants who entered the U.S. before the age of 16 by January 1, 2010. Applicants for DACA work permits can be of any age as long as the meet the age at entry requirement. Another improvement is that DHS plans to expand the validity of a DACA-based work permits from two to three years. This work authorization expansion will allow young immigrants to continuously contribute to the U.S. economy, and will provide stability to their employers who are often hesitant to hire someone with a short-term work permit. Link to the DACA Expansion MEMO: http://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_action.pdf
2. Work Permits For Immigrant Workers for Family Unity Purposes Based on Deferred Action
Other immigrant workers who are currently working in the US illegally will be able to obtain work permits through deferred action based on family unity. Immigrant parents with U.S. citizens or lawful permanent residents children may qualify if the parent resided in the U.S. since January 1, 2010; was physically present in the U.S. on November 20, 2014; had no lawful status on November 20, 2014; and has no criminal record warranting priority for detention or removal/deportation by DHS. Link to the memo: http://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_action.pdf
WHAT DOES IT MEAN FOR EMPLOYERS? Employers will be able to hire immigrant workers legally instead of employing them without work authorization. However, this is not a ‘get out of jail free card.” With heightened worksite enforcement (see No. 1 above), employers will be expected to comply with Immigration Reform and Control Act. Employers should take the advice of following ICE’s Best Employment Practices very seriously now, including establishing immigration compliance plans, policies and processors, conducting internal I-9 audits and training their HR personnel on immigration compliance. Basically, the tradeoff between the government and employers is, the government is giving employers an opportunity to have legal labor in exchange for heightened immigration compliance effort by employers.
III. Help for Employers Needing Foreign Workers in Highly-Skilled Occupations, Two H-1B Visa Cap Fixes:
Employers that have been turning away or unable to retain highly-skilled workers, such as software developers and engineers, will now have just a few more options other than using the H-B visa. The biggest issue with utilizing the H-1B visa is that there is a cap on the number of visas allotted each year. The President does not have the power to increase the limit, and Congress has failed to do so, so he used Executive Action to open other avenues for employers to hire highly-skilled foreign workers.
The H-1B visa is a tool that allows U.S. employers to hire foreign nationals in “specialty occupations” such as IT, engineering, math, and medicine, among others. Congress has limited H-1B visas available to employers to 85,000 per year. Employers are faced with severe shortage of H-1B visas. They file many more H-1B petitions than visas available within a week of when the annual quota opens, which forces DHS to conduct a lottery for which employers will have their petitions adjudicated. The unselected H-1B petitions are returned to employers, and for the rest of the year, no new employment H-1B petitions are accepted by DHS. As a result, thousands of foreign graduates of US universities proceed to work in Canada, Germany, and India, in effect, widening the outsourcing gap because we do not have enough H-1B visas. The H-1B cap hurts the U.S. economy by sending scarcely available technical talent abroad.
Link to the memo: http://www.dhs.gov/sites/default/files/publications/14_1120_memo_business_actions.pdf
1. H-1B Shortage Fix Through Increase in Optional Practical Training (OPT) Work Permits for Foreign Graduates of U.S. Universities
President Obama used his limited executive power to help employers through enhancing the OPT-based work permits. Currently, all foreign graduates of U.S. universities are eligible for a 12-month OPT-based work permit, with graduates with degrees in Science, Technology, Math, and Engineering eligible for 27 additional months. Normally, while OPT is pending, employers file H-1B petitions for the workers so they can retain their employment for up to six years. DHS plans to extend the number of months foreign graduates of U.S. universities may work using an OPT-based work permit, which will be extremely helpful to employers who are unable to obtain H-1B visas for these workers. DHS will also develop regulations to expand the degree programs eligible for OPT. Ultimately, these regulations could help employers work around the H-1B cap and number shortage to retain their highly-skilled student employees for longer periods of time.
WHAT DOES IT MEAN FOR EMPLOYERS? Employers will be able to hire high-tech foreign graduates of US universities for longer terms using OPT-based work permits while Congress figures out whether or not the H-1B cap should be raised or lifted altogether. This will allow the US to keep needed foreign talent, good jobs, and taxes in the US instead of sending it all abroad.
2. Another H-1B Shortage Fix: “Specialized Knowledge” Intercompany Transferee L-1B Visas
Faced with a severe H-1B visa shortage, U.S. employers with affiliates abroad may use the L-1B “specialized knowledge” visa to transfer their foreign employees to the U.S. DHS often denies employer L-1B petitions based on their interpretation of what “specialized knowledge” is, creating further business uncertainty for U.S. employers. Employers are frustrated because they are unable to bring needed specialized knowledge employees, often in high-tech industry, to the United States. President Obama’s executive action is directing USCIS to clarify the L-1B requirements by issuing a memo defining “specialized knowledge.”
WHAT DOES IT MEAN FOR EMPLOYERS? Multi-national companies with U.S. presence will be able to rely on the L-1B specialized knowledge memo when filing petition for their foreign workers. This may become a meaningful alternative in the absence of H-1B visa availability.
IV. More Flexibility for Foreign Workers with Advance Degree Workers: National Interest Waiver and Parole
The national interest waiver provision of U.S. immigration law allows foreign nationals with advanced degrees to apply for permanent resident status, or “green cards” in the United States through a less complicated and less lengthy process than other employment-based immigrants, if they are able to demonstrate their work will have a national impact. However, USCIS’s routine denials of national interest waiver petitions has had a chilling effect on foreign applicants, resulting in the category to be underused. President Obama’s executive action directs USCIS to better define the category in the hope that further guidance will result in advanced degree foreign nationals obtaining green cards and contributing to the United States.
Additionally, DHS is asking that parole be granted to researchers, inventors, and founders of start-up companies who are not yet eligible for the national interest waiver so that they can bring their ideas and intelligence onto American soil instead of boosting the economies of other countries. Each person who would be granted parole must show they are awarded substantial U.S. investor financing or otherwise able to show their admittance will result in innovation and job creation here in the U.S. In the immigration sense, “parole” refers to a person who is permitted to enter the U.S. for a limited purpose. This type of parole is called parole for the “significant public benefit” because it is the government’s goal to cultivate research and invention on American soil.
WHAT DOES IT MEAN FOR EMPLOYERS? This part of the executive action will create a bit more flexibility in bringing and retaining major research and business talent in the United States, which is greatly needed.
IV. Increasing Worker Portability: How an employee can change job titles and employers during the green card proces
The employment-based green card process can take between a couple of years to over ten years because Congress has limited the amount of available green cards for employment-based applicants. Because of the technical process, workers are unable to change jobs until their priority date becomes “current”, which may take years. Executive action may change that by allowing workers to apply for adjustment of status when the employer’s I-140 petition for alien worker is approved. The regulation currently says that workers can only change jobs without affecting their approved I-140 if their new job is in a “same or a similar” occupation classification. Just as there is uncertainty with the definition of “specialized knowledge” with L-1Bs, there is uncertainty with the definition of a “same or a similar” occupational classification. The executive action is directing USCIS to issue a policy memorandum regarding this definition, which should take away any hesitancy employers or employees have about changing the worker’s job title during the green card process.
WHAT IT MEANS FOR EMPLOYERS? This clarification will remove “unnecessary restrictions to natural career progression” and create flexibility and stability in the job market for both employers and employees engaging in the green card process.
This summary has been prepared by
Mira Mdivani and Danielle Atchison
Corporate Immigration Attorneys
MDIVANI CORPORATE IMMIGRATION LAW FIRM
(c) CORPORATE IMMIGRATION COMPLIANCE INSTITUTE
DIsclaimer: this article is not legal advice. It may not apply to your specific facts.