Update: Comprehensive Immigration Reform

Comprehensive Immigration ReformFor the past 18 months, The House of Representatives has debated whether or not to take a vote on the comprehensive immigration reform bill that passed through the Senate in the summer of 2013. In the absence of a House vote, President Obama announced, on November 20, 2014, that he would take a series of executive actions, known collectively as the Immigration Accountability Executive Actions (“IAEA”) with the aim of improving various aspects of U.S. immigration law and policy. Details are still being finalized and while reform is imminent the implementation of Obama’s executive actions will take several months. Please note that the IAEA is not nearly as expansive as the bill that passed through the Senate. Still, Obama’s IAEA is wide-reaching and could potentially affect the following areas:

  • U.S. Employers and Employment-based Immigration
  • Foreign Entrepreneurs and Investors
  • Individuals and Family-based Immigration
  • Enforcement and Regulatory Compliance

Accurate and up-to-date information is integral to providing sound advice to clients and other stakeholders on this important issue.  Green and Spiegel, through efforts and information provided by the American Bar Association (ABA) and the American Immigration Lawyers Association (AILA), is well situated to offer timely analysis and information on this complex and evolving issue.

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U.S. Employers and Employment-Based Immigration

President Obama has emphasized that his current efforts are intended to streamline immigration proceedings and provide immigrants with a restructured system that is efficient and effective for legal foreign workers and U.S. employers.  As such, the President’s reform will alleviate some of the bureaucratic burdens for those legal foreign workers as they apply for temporary visas and legal permanent resident status.

  • Enable individuals who are eligible to apply for adjustment of status, but for a non-current priority date, to file for “preregistration,” which will enable them to take advantage of certain benefits, such as advance parole and employment authorization, prior to filing their adjustment of status application. This initiative will provide more flexibility regarding work authorization, travel outside the United States and derivative employment.
  • Modernize the visa system in order to make more efficient use of the current allotment of immigrant visas to reduce the backlog (retrogression).
  • Work authorization for spouses of H-1Bs will be finalized pending regulation in December or January.
  • Further guidance will be provided regarding current AC21 permanent portability provisions to ensure that employers and foreign workers have greater job mobility.  Specifically clarification will be provided as to the definition of “same or similar” for purposes of permitting foreign workers to take promotions to supervisory positions and transitions to related jobs in the field of endeavor.
  • A revision of the Optional Practical Training program. Details concerning this restructure will possibly expand and extend the current program with regards to the length of stay for foreign students of science, technology, engineering, and mathematics (STEM) with degrees from accredited United States institutions of higher education.
  • L-1B Intra-Company Transferee petitioners and beneficiaries will see significant clarification regarding the Department of Homeland Security’s definition of “specialized knowledge” regulations in order to enhance uniformity of petition adjudications.
  • The U.S. Department of Labor intends to take regulatory action to modernize the current PERM Labor Certification process.

Foreign Entrepreneurs & Investors

President Obama has also emphasized the importance of easing access to the United States for foreign entrepreneurs.  To such end, the IAEA requires the U.S. Department of Homeland Security to create both a means for such foreign nationals to remain temporarily in the United States as well as have quicker and easier access to the permanent resident process.

  • A major expansion of the National Interest Waiver will include petitions filed on behalf for foreign entrepreneurs, researchers, inventors, and highly-skilled immigrants.
  • Enable foreign nationals  to be paroled (temporary status contain employment authorization) into the United States if they are foreign inventors or entrepreneurs.

Individuals and Family Based Immigration

The President’s refocusing and restructuring of a broken system seeks to unite families, not splinter them with unnecessary deportation. The President’s highly-anticipated expansion of deferred action will offer both employment authorization and advanced parole to parents of U.S. citizens and permanent residents in the form of the Deferred Action for Parental Accountability (DAPA) program as well as an expansion of the Deferred Action for Childhood Arrivals program and the “stateside waiver program”.

  • Available to those who meet the following criteria in its entirety:
    • Parent of a U.S. citizen or legal permanent resident;
    • Have resided in the United States prior to and since January 1, 2010;
    • Register officially with the United States government; and
    • Have an absence of a significant criminal record.
    • To go into effect within 180 days following the President’s November 20, 2014 announcement.
    • An extension of Provisional Waivers eligibility granted to both the spouses and children of permanent residences with legal status which will include both update and clarification of the full regulatory definition of “extreme hardship.” To go into effect upon issuing of new guidelines and regulations.
    • Deferred Action for Childhood Arrivals (DACA) will substantially grow in its amended regulations consisting of the abolishment of its age restriction to now include childhood arrivals, expansion to awarded three-year increments (immediate implementation), and the implementation of continuous U.S. residence from January 1, 2010. To go into effect within 90 following the President’ November 20, 2014 announcement.

Enforcement and Regulatory Compliance

In accordance with strictly enforced regulatory compliance, employers must still meet or exceed legislative criteria for all employees as discussed in greater detail on Form I-9, including document verification of identity and employment authorization.

Additionally, the President’s proposal includes an enforcement priorities component which serves to increase penalties for hiring undocumented workers, new penalties for committing fraud and identity theft, alongside greater scrutiny and enforcement to ensure that U.S. employers comply with federal labor, employment, and immigration laws:

  • Mandatory, phased-in electronic employment verification systems, which will enable employers to ensure a legal workforce by using federal government databases to verify that foreigners are eligible to work in the United States;
  • Increase in monitoring and accountability of employers; and
  • Expansion of the E-Verify system to increase employer enrollment, which will enable them to electronically confirm that an employee is eligible to work in the United States.

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“Families who enter our country the right way and play by the rules watch others flout the rules. Business owners who offer their workers good wages and benefits see the competition exploit undocumented immigrants by paying them far less. All of us take offense to anyone who reaps the rewards of living in America without taking on the responsibilities of living in America. And undocumented immigrants who desperately want to embrace those responsibilities see little option but to remain in the shadows, or risk their families being torn apart….My fellow Americans, we are and always will be a nation of immigrants. We were strangers once, too. And whether our forebears were strangers who crossed the Atlantic, or the Pacific, or the Rio Grande, we are here only because this country welcomed them in, and taught them that to be an American is about something more than what we look like, or what our last names are, or how we worship. What makes us Americans is our shared commitment to an ideal – that all of us are created equal, and all of us have the chance to make of our lives what we will…That’s the country our parents and grandparents and generations before them built for us. That’s the tradition we must uphold. That’s the legacy we must leave for those who are yet to come.”

Barack Obama, November 20, 2014