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On November 20, 2014, President Obama released the long-anticipated “Executive Action” on immigration reform. See here, here and here. We will also post additional materials made available. Late last summer, the President had postponed the release of such action until after the mid-term elections. Despite the cries of overreaching and lack of authority by the Republican leadership in the House and the Senate, the President has now released a plan to begin immediately the process of implementing some new policies through published guidance and to begin implementation of other policies through proposed regulatory changes. Some opposed to these actions have vowed to block the implementation through judicial intervention, attempts to defund the programs and potentially through other political means.

We will monitor the status of each change and post updates as they become available.

The following is a brief summary of the Executive proposed actions that will impact business. We have divided them broadly into three categories: 1) Changes done through guidance; 2) Changes that will need regulatory action; and 3) Changes that are still being discussed through a “Presidential Memorandum” process.

Administration Guidance without New Regulation       

  • Expansion of Deferred Action. Provide deferred action with employment authorization and advance parole, to include:
    • Parents of U.S. citizens and Permanent Residents. (Must have lived in the U.S. for 5 years and must have entered by January 1, 2010.)
    • Expansion of current Deferred Action Program to include Individuals who have resided in the U.S. for 5 years or more. There will no longer be an age limit.
  • Parole in Place. Expand PIP eligibility and confirm that Matter of Arrabally & Yerrabelly applies to all who depart and return on advance parole.
  • National interest waivers available for those in positions to create jobs, and those fulfilling shortage occupations.
  • Exemption from the H-1B cap. Interpret the term “affiliated or related nonprofit entity” to an institution of higher education for H-1B cap-exemption purposes under INA §214(g)(5)(A) more flexibly.

Regulatory Changes through the Administration Procedure Act/Federal Register

  • Enable entrepreneurs to be paroled into the U.S. and work if they are researchers, inventors or founders of businesses.
  • Expand availability of optional practical training for graduating F-1s:
    • Make the additional time available for STEM OPT graduates and expand the definition of STEM.
  • Early Adjustment. Enable individuals who are eligible to apply for adjustment of status, but for a non-current priority date, to file for adjustment and receive work authorization and advance parole.
  • Work authorization for spouses of H-1Bs. Finalize pending regulation.
  • Improve the L-1 adjudicative process:
    • Release of guidance on L-1Bs.

Presidential Memorandum on Visa Modernization – Further Discussion

  • Recapturing permanent resident numbers based on numbers allocated by Congress but left unused. When the government is unable to issue the allocated immigrant visa numbers for preference immigrants in a particular fiscal year, despite sufficient demand for such immigrant visa numbers, then the Department of State will ensure those unused immigrant visa numbers are used in subsequent years, in order to better effect Congressional objectives.
  • Derivative spouses and children not counted toward preference quotas.
  • Other important issues related to help revise the visa process for businesses.

Compliance Concerns with the extension of Deferred Action

Extensions of temporary relief for workers already in the U.S. could make their status more confusing to employers and put business owners in an untenable position with regard to employment eligibility verification compliance. Employers are particularly vulnerable when a current employee comes forward and reveals that s/he has been working for the company under a false identity and asks the employer to provide evidence of his/her employment history in order to take advantage of Executive Relief. An employer faces civil and potentially criminal liability for past hiring of unauthorized workers and also may face discrimination charges for hiring newly documented workers who previously presented fraudulent documents. Additionally, employers who do provide documentation to unauthorized workers may be identified as a target for future government enforcement activity.

Legislation to permanently address many of the items identified in the President’s executive action is still very much needed. We will continue to monitor and bring our readers updates as these initiatives, and reactions to them, unfold.

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Photo of Laura Foote Reiff‡ Laura Foote Reiff‡

Laura Foote Reiff is the Co-Managing Shareholder of the Northern Virginia Office. She also Co-Chairs the firm’s Labor & Employment Practice’s International Employment, Immigration & Workforce Strategies group. Laura focuses her practice on business immigration laws and regulations affecting U.S. and foreign companies,

Laura Foote Reiff is the Co-Managing Shareholder of the Northern Virginia Office. She also Co-Chairs the firm’s Labor & Employment Practice’s International Employment, Immigration & Workforce Strategies group. Laura focuses her practice on business immigration laws and regulations affecting U.S. and foreign companies, as well as related employment compliance and legislative issues.

Laura advises corporations on a variety of compliance-related issues, particularly related to Form I-9 eligibility employment verification matters. Laura has been involved in audits and internal investigations and has successfully minimized monetary exposure as well as civil and criminal liabilities on behalf of her clients. She develops immigration compliance strategies and programs for both small and large companies. Laura performs I-9, H-1B and H-2B compliance inspections during routine internal reviews, while performing due diligence (in the context of a merger, acquisition or sale) or while defending a company against a government investigation.

Laura represents many businesses in creating, managing and using “Regional Centers” that can create indirect jobs toward the 10 new U.S. jobs whose creation can give rise to EB-5 permanent residence for investment. She coordinates this work with attorneys practicing in securities law compliance, with economists identifying “targeted employment areas” and projecting indirect job creation, and with licensed securities brokers coordinating offerings. She also represents individual investors in obtaining conditional permanent residence and in removing conditions from permanent residence.

Laura’s practice also consists of managing business immigration matters and providing immigration counsel to address the visa and work authorization needs of U.S. and global personnel including professionals, managers and executives, treaty investors/ traders, essential workers, persons of extraordinary ability, corporate trainees, and students. She is an immigration policy advocacy expert and works on immigration reform policies.