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Obama’s Immigration Executive Action: Some Lawful Immigration Changes

So of course the centerpiece of President Obama’s administrative “fix” of our “broken immigration system” are his initiatives to grant “deferred action” to some aliens who are unlawfully present in the United States, and who were brought to the United States as children and raised here.  But the President did much more when he announced on November 20, 2014 several other initiatives which affect lawful immigration, and which are supposed to assist our country’s high-skilled businesses and workers.  Here’s a brief overview.

 1.  Immigrant Visa Issuance.  The President wants to ensure that all available immigrant visas (basically, “Green Cards”) are used each year, and the President has created a new interagency task force to modernize and streamline the immigrant visa system.  Because of delays in processing applications for immigrant visas, some visas going unused each fiscal year.  Given the unbelievable backlogs in some of the family- and employment-based immigrant visa categories, this is clearly unacceptable.  The President’s action is an attempt to ensure that all immigrant visas available for issuance in a year are used.

 2.  Optional Practical Training.  The President announced that he would expand the duration of any “optional practical training” (commonly known as “OPT”) engaged in by foreign national students who studied science, technology, engineering, and mathematics (commonly known as “STEM” fields) at institutions of higher education in the United States on F-1 nonimmigrant student visas.  The President also proposed to expand the degree programs eligible for OPT.

Presently, foreign national students studying in the United States on F-1 nonimmigrant visas may request 12 months of post degree temporary employment, or OPT, in their field of study.  In 2008, regulations were promulgated which permitted students in STEM fields to request an additional 17 months of OPT, for a total of 29 months of OPT.  However, only students in STEM fields are eligible for this 17 month extension, and these students can participate in OPT for no more than 29 months.

3Aliens Whose Admission to the United States is in the National Interest.  The President proposes to expand the use of the immigrant visa category which allows aliens with advanced degrees or “exceptional ability” to obtain an immigrant visa without a sponsoring employer if their admission to the United States is in the “national interest.”

 4.  Inventors, Researchers, and Founders of Start-up Enterprises.  The President proposes to use the authority granted to the executive branch in the Immigration and Nationality Act (“INA”) to “parole” foreign nationals into the United States when there is a “significant public benefit” to allow some inventors, researchers, and founders of start-up enterprises to enter and lawfully remain in the United States without a visa.

5.  L-1B Specialized Knowledge Aliens.  For companies who wish to hire foreign nationals as “intra-company transferees” using the L-1B nonimmigrant visa program, the President’s proposal seeks to clarify and standardize the meaning of “specialized knowledge” for purposes of the L-1B visa program.  The L-1B nonimmigrant visa allows companies to transfer certain employees who are executives or managers, or have “specialized knowledge” of the company or its processes, to the United States from the company’s foreign operations.

 6.  I-140 Portability under AC21 §106(c).  The President seeks to clarify what is meant by the “same or similar job” for purposes of INA §204(j), which provides that employment-based immigrant visa petitions remain valid when the foreign national employee changes jobs or employers so long as the new job is in the “same or similar occupational classification” as the job for which the original petition was filed.

 7.  Labor Certification (“PERM”) Modernization.  The President seeks to review the Labor Certification program (commonly called “PERM”), whereby the U.S. Department of Labor (“USDOL”) certifies that the issuance of an employment-based immigrant visa will not displace U.S. workers, or adversely affect the wages or working conditions of similarly employed U.S. workers.  More particularly, the President wants to identify methods for aligning domestic worker recruitment requirements under the PERM regulations with demonstrated occupational shortages and surpluses.

 8.  Human Trafficking and Crime Victims.  The President announced that the USDOL will certify (a) applications for T nonimmigrant visas for foreign nationals who have been victims of human trafficking, as well as (b) applications for U nonimmigrant visas for eligible victims of extortion, forced labor, and fraud in foreign labor contracting that the USDOL detects in the course of its workplace investigations.

The President announced other initiatives too (which I will write about at a later time).  As you can see from the above, not everything the President announced was controversial (even though some feel how he went about it was).  It seems clear to me, however, that what he announced was very necessary and very welcome (by most, anyway).


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ABOUT THE CONTRIBUTOR

David W. Meyers, Esq. is managing partner of Meyers & Meyers, LLP. David works with individuals, businesses and higher education institutions helping them resolve any issues regarding immigration, citizenship and naturalization for themselves or their employees.

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