Executive Action on Immigration Reform


By Jim Reidy & Nate Warecki

On Thursday evening November 20th President Barrack Obama, as promised, announced a string of executive actions concerning the United States immigration system.  This announcement was made in advance of a forthcoming Executive Order, which will involve numerous changes to the way the Obama administration interprets and enforces United States immigration law.

Although much of the proposed Executive Order concerns deferred enforcement action for unauthorized aliens and improved border security, some aspects of this Order will likely impact U.S. employers and colleges and universities as well as foreign workers, students, and entrepreneurs.  In particular, the President has directed the Department of Homeland Security and the Department of Labor to issue regulations concerning various business-related topics.  Accordingly, USCIS and DOL have announced that they have or will be proposing rules or publishing final rules intended to:

1)     Reduce the backlog of employment-based immigrant visa petitions;

2)     Grant work authorization to the spouses of H-1B temporary workers (H-4 nonimmigrants);

3)     Ease restrictions on portability for H-1B temporary workers who are the beneficiaries of pending immigrant visa petitions;

4)     Clarify the definition of “same or similar” job and facilitate the advancement of H-1B temporary workers while they wait for permanent residence;

5)     Expand the fields of study that qualify as STEM (science, technology, engineering, and mathematics) degrees, thereby permitting more foreign students to take advantage of the 27-month Optional Practical Training (OPT) work authorization period associated with STEM degrees (OPT is normally only 12 months);

6)     Clarify the standard under which a “national interest waiver” will be granted to self-petitioning immigrants with advanced degrees or exceptional abilities;

7)     Establish a parole program to permit inventors, researchers, and entrepreneurs to temporarily enter the United to pursue research or develop businesses;

8)     Clarify the definition of “specialized knowledge” for L-1B intracompany transferees; and

9)     Update the PERM labor certification regulations to better reflect modern employer recruitment practices, increase transparency, and hopefully decrease the denials on purely technical grounds.

These are highly technical proposals purportedly designed to improve efficiency, expand existing immigration programs, and clarify the meaning of the Immigration and Nationality Act.  They will likely impact U.S. employers engaged in the process of hiring of foreign nationals or who are considering the same, as well as U.S. colleges and universities and foreign students and entrepreneurs.  For those individuals who hold advanced degrees, are persons of exceptional ability, or are seeking to invest, these proposed changes could also be of importance.

Of course, this has been a controversial issue and may be subject to constitutional challenge in the courts or to subsequent Congressional action.  However, in the absence of immigration reform passed by Congress or a stay or successful court action, it is anticipated that DHS and USDOL will begin collecting comments and publishing proposed and final rules shortly. 

The exact impact on immigration stakeholders will not be known until those rules have been finalized.  In the meantime, U.S. employers, colleges and universities, and potential immigrants should monitor developments and analyze how these potential changes could impact their business and immigration needs.  Stay tuned!

* * *

James P. Reidy is a shareholder at Sheehan Phinney Bass + Green. He is Co-Chair of the firm’s Labor, Employment and Employee Benefits Group. Nathan P. Warecki is an associate at Sheehan Phinney Bass + Green. He practices in the areas of immigration and employee benefits as a part of the Firm’s Labor, Employment and Employee Benefits Group.

This article is intended to serve as a summary of the issues outlined herein. While it may include some general guidance, it is not intended as, nor is it a substitute for, legal advice.

ADVERTISEMENT — This electronic publication is labeled advertisement in compliance with Federal Law and may be considered advertising under the ethical rules of certain jurisdictions.