President Obama’s Immigration Announcement Will Affect Employers, Not Just Those Illegally Present in the United States

President Obama, on Nov. 20, 2014, announced a series of decisions and policy changes that he intends to carry out by executive order that will affect U.S. employers. While some of the more controversial areas focus on those who are not legally present in the U.S., many will affect employers. While the details are still unclear, they are expected to be clarified through policy memoranda and be implemented through new and/or amended federal regulations. Here are the employment-related points as conveyed by the White House to the American Immigration Lawyers Association:

1. Deferred Action for Parents (DAP)

Parents of U.S. citizens and lawful permanent residents (of any age) who have been continuously present in the U.S. since Jan. 1, 2010, and who pass background checks and pay taxes, will be eligible to apply for deferred action, which will be granted for a three-year period, and employment authorization. This will allow them to remain in the U.S. without a specific immigration status. Parents of Deferred Action for Childhood Arrivals (DACA) recipients are not eligible. (See below)

2. Expansion of DACA (Deferred Action for Childhood Arrivals)

DACA will be revised to eliminate age requirements. In addition, continuous presence must have started before Jan. 1, 2010. It will also be granted for three years (including for those with pending renewal applications).

3. Worksite Enforcement

The Department of Labor will coordinate with other agencies, such as United States Immigration and Customs Enforcement (USICE) regarding worksite enforcement activities.

4. Foreign Entrepreneurs

Certain investors will be allowed to enter the U.S. as parolees or be granted parole in place if already in the U.S. for job creation. No further details were provided. Also, entrepreneurs, researchers, inventors and founders will be eligible for national interest waivers (in the place of labor certification).

5. Adjustment of Status for Those Whose I-140 is Backlogged Due to Priority Date

Foreign nationals with an approved employment-based immigrant application, whose priority date precludes them from filing an application to adjust status, will be permitted to file the application to gain the benefits of a pending adjustment, including employment authorization and advance parole. The White House estimated that this will affect over 400,000 people.

6. AC21 -- “Same or Similar”

The term “same or similar” will be clarified for those whose adjustment of status applications have been pending for more than 180 days and who wish to move to a “same or similar” position with another employer.

7. L-1B Visas

Very little information was shared other than that new guidance will be released.

8. H-4 Employment Authorization

A regulation will be finalized and issued that would enable those in H-4 status (as dependents of those in H-1B status) to obtain employment authorization.

9. Optional Practical Training (OPT)

The length of time allowed for OPT for STEM (science, technology, engineering and math) graduates will be increased.

10. Program Electronic Review Management (PERM)

The Department of Labor will issue new regulations to update the PERM (labor certification) program.

11. Advance Parole

A new memo will address the issue of departing the U.S. after being illegally present. The memo will clarify that U.S. Customs and Border Protection should honor the advance paroles issued by United States Citizenship and Immigration Services (USCIS) and allow those people to re-enter the country.

12. Visa Modernization

Federal agencies will be directed to examine modernizing the visa system, including whether family members should be counted against the immigrant visa cap and whether past unused visa numbers can be recaptured.

Dykema will continue to keep you apprised of developments in these areas as they are clarified by the Obama administration.

For more information about this and other Immigration issues, please contact the author of this alert, James G. Aldrich, Jr., at jaldrich@dykema.com or 248-203-0583.