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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.
3. Aliens 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).
Obama’s Executive Action : Expanding Deferred Action Initiatives to Unlawful Aliens
OK, so let’s break it down. Clearly the centerpiece of President Obama’s administrative “fix” of what he has repeatedly described as a “broken immigration system” are his initiatives to grant “deferred action” (essentially, temporary relief from being removed or deported from the United States) to some aliens who are unlawfully present in the United States, and who were brought to the United States as children and raised here. A second group of aliens unlawfully present in the United States who will benefit under the President’s actions are those who have children who are U.S. citizens or lawful permanent residents (“LPR’s”, or “Green Card” holders).
Deferred Acton for Childhood Arrivals
So what are the specifics? In June 2012, President Obama’s then-Secretary of Homeland Security Janet Napolitano announced a program, commonly known as Deferred Action for Childhood Arrivals (“DACA”), whereby aliens unlawfully present in the United States who had been brought to the United States as children and who met other criteria could receive “deferred action.” In many cases, these individuals also received employment authorization. Eligibility for DACA, however, expressly excluded aliens unlawfully present who were over the age of 31, or who had entered the United States on or after June 15, 2007.
On November 20, 2014, President Obama modified the DACA program by eliminating the age ceiling and making individuals who began residing in the United States before January 1, 2010 eligible. Moreover, the President announced that DACA grants and accompanying employment authorization will, as of November 24, 2014, last three years instead of two. We’re informed that those eligible under the new criteria should be able to apply within 90 days of the President’s announcement.
Deferred Action for Parents of U.S. Citizens and Lawful Permanent Residents
Hand-in-hand with the expanded provisions of DACA was the President’s announcement that his administration would also be granting “deferred action” to the parents of U.S. citizens and LPR’s. This initiative is commonly called DAPA. Like those eligible for DACA, some applicants for DAPA will be eligible for employment authorization too.
Specifically, aliens unlawfully present in the United States, and who have children who are either U.S. citizens or LPR’s, will also be eligible for deferred action (and employment authorization) pursuant to the President’s announcement. To be eligible, in general, these aliens must be able to show “continuous residence” in the United States since before January 1, 2010, physical presence in the United States both on the date the initiative was announced (i.e., November 20, 2014) and when they request deferred action, (3) not being an enforcement priority under the administration’s newly announced enforcement priorities, and that they present no other factors that, in the exercise of discretion, would make the grant of deferred action inappropriate.
The Obama Administration estimates that approximately 5 million aliens unlawfully present in the United States could be directly affected by the expanded DACA and new DAPA initiatives. However, the actual number who apply for benefits under either program may be much smaller, depending on outreach, access, cost, and numerous other factors.
So What did President Obama Actually Do?
Immigration reform has arguably become the third rail of politics. Those on the political right will say that the President granted “amnesty” to all these aliens. I suppose whether that’s true depends on what your definition of amnesty is. I personally don’t believe that’s the case. Here’s what I can tell you.
A grant of deferred action is not “legalization” as that term is commonly understood in the world of immigration. Legalization is typically a process whereby aliens who are unlawfully present in the United States acquire legal status, typically as LPR’s. LPR’s can then typically apply for U.S. citizenship after a statutory period of time (and assuming they meet certain conditions). That’s not at all what happened here.
Aliens granted deferred action are generally “lawfully present” in the United States under federal law. That’s it. They may also be eligible for certain benefits, like applying for driver’s license, but by and large, they would not be eligible for public benefits.
Being “lawfully present” in the United States is not the same as being in a “lawful status.” Aliens granted deferred action are not in a lawful status. Thus, a grant of deferred action, in and of itself, does not result in an alien obtaining a Green Card, and as a result, such an individual cannot eventually apply for citizenship. Indeed, aliens granted deferred action could conceivably have their status terminated by Congress in the future.
Of course, I personally hope this will not be the case, but one never knows. The next two years may tell us a lot. Politics is a funny thing.
Election Afterthoughts and Immigration Reform by Executive Action
I’ve taken some time to digest the 2014 midterm election results, and specifically in terms of what they mean for the prospect of comprehensive immigration reform. At first blush, it doesn’t look great. At second blush too.
Last week, however, the New York Times published (in my opinion) an excellent editorial, making the case why President Obama should go it alone and use his executive authority to give temporary protection to potentially millions of aliens unlawfully present in the United States. I am well aware that this is a hotbed issue, and people have legitimately strong arguments on both sides of it. I think the President should go for it, and it looks like he’s about to, perhaps as early as this week (and we’re informed not later than the end of the year).
To be honest, I have mixed emotions about President Obama. But the reality is, the New York Times is absolutely correct in saying that “[s]ix fruitless years is time enough for anyone to realize that waiting for Congress to help fix immigration is delusional.” It’s actually been longer than six years. President George W. Bush tried for comprehensive immigration reform during his presidency, and that fell apart. Others before him have tried and failed as well.
I’ve made this point before, but it really is worth repeating. Our immigration system is broken. Is it really practical to think that we’re going to deport 11 to 13 million aliens who are unlawfully present in the United States? No. Does it make sense that we educate foreign nationals at some of our best institutions of higher education, and then tell them that they can’t stay here because there’s no visa, either temporary or permanent, that allows them to? No. Our immigration system is broken, and our national leaders, with the input of relevant stakeholders, should discuss, debate and implement comprehensive immigration reform.
Unfortunately, a legislative fix does not appear in the offing. Thus, we’re now hearing (and reading) that President Obama may use his executive power to prevent the removal (commonly known as deportation) of anywhere between 3 and 5 million aliens who are unlawfully present in the United States. The specifics are apparently still being worked out, but I’m hearing that those who are the parents of U.S. citizen children, or the spouses of U.S. citizens, will be allowed to remain in the United States, and even obtain permission to work, indefinitely.
Just so I am clear. These individuals will not be afforded lawful permanent residence (i.e., a Green Card), nor will they be put on a path to citizenship. Only Congress has the ability to make those types of changes (with, of course, the signature of the President).
This is not a perfect solution. These individuals would (potentially) only be receiving a temporary reprieve from deportation. Congress could change the law, or a future president could cancel President Obama’s program. If that were to occur, those who participated in the program would be out in the open and thus exposed to removal. Nevertheless, I think it’s a step in the right direction, and worth the risk for those aliens who would participate in it.
As the New York Times stated in its editorial, “[t]here will surely be intense debate when [President] Obama draws the lines that decide who might qualify for protection. Some simple questions should be his guide: Do the people he could help have strong bonds to the United States? Does deporting them serve the national interest? If it doesn’t, they should have a chance to stay.” I agree.
Back to School, but Congress Still as Unproductive as Ever
I rec
ently took my five year old to his first day of kindergarten. He was pretty excited (and so was I for him). Now that the summer is officially behind us, our summer vacations are but a distant memory, our children are now back to school, and we are back to work.
I’m sure most of you know that our children must be in school no less than 180 days during the school year. I’m sure most of you, like me, work no fewer than 5 days a week (and often more). Do you know how many days Congress has been in session this year? Do you know how many days Congress has actually worked this year?
I remember when I used to work on Capitol Hill. Summertime at the office was fairly quiet as a rule. My boss would spend most of this time back in New York, occasionally coming back to Washington for one thing or another. It was pretty rare. Times have not changed, but our legislators certainly have.
When I worked on the Hill, I was admittedly a geek. I would go sit in the Senate gallery after work and watch bills being debated. Let me set the scene. If you’ve ever watched Congressional proceedings on C-SPAN, you might think that all the Senators or Representatives are intently listening to their colleague debate the merits of a bill. Nothing could be further from the truth. Typically the only people in the Senate or House chambers are the person speaking about a particular bill, a staffer sitting behind that particular legislator, one or two stenographers, a few congressional pages, whoever happens to be sitting in the chair person’s seat, and a few administrative folks who actually work for the Senate or the House. I imagine that if I was working on Capitol Hill today, I might have to find something else to do after work given that no Congress in modern history has passed fewer laws (to date anyway) than this one.
I read an interesting piece on the NBC News website recently that this particular Congress has been the least productive in modern history. Just prior to its August recess, “just 142 public bills [had] become law in this current Congress (2013-2014) – down from the 906 the 80th “Do-Nothing” Congress passed in 1947-48, and the 333 that were enacted during the Newt Gingrich-led 104th Congress of 1995-96.”
After coming back from their summer recess, Congress took care of a few things, and according to a recent article from NBC News, they’re now gone until November! “The U.S. House has been in session for roll call votes a total of 92 days in 2014 – or 35% of the year up until now. (They had “pro forma” sessions – without any legislative business – for an additional 25 days.) … The Senate’s been working slightly less, holding roll call votes on just 87 days this year, with an additional 30 days of “pro forma’ sessions, when most lawmakers aren’t in Washington.”
What about you and I? According to NBC News, “[t]hose of us working a typical 5-day work week, with public holidays, would have been clocking in for a total of somewhere around 181 days during that time.”
Incumbency is still a big plus for a legislator running for re-election, although arguably it’s a little less meaningful these days than it was before. We have important national issues that need our Congress’s attention, not the least of which is … wait, wait for it … Comprehensive Immigration Reform (CIR). The Los Angeles Times reported recently that although House Speaker John Boehner noticeably left immigration out of a speech made recently about the economy, he acknowledged during questions afterward that he thought that “immigration reform would help our economy.” Duh. So why can’t he get his party’s support in the House to pass meaningful immigration reform?
Instead, we’re left to wonder whether, and if so, when, President Obama will take executive action in lieu of congressionally passed (and supported) CIR. We can debate whether executive action in lieu of legislation is a good idea. Doing nothing, however, is a bad idea.
US Employers Apply for Visas for Foreign Nationals in Specialty Applications : H-1B Cap Reached in 7 Days
On April 7, 2014, U.S. Citizenship and Immigration Services (“USCIS”) made the following announcement:
“U.S. Citizenship and Immigration Services (USCIS) announced today that it has received a sufficient number of H-1B petitions to reach the statutory cap for fiscal year (FY) 2015. USCIS has also received more than the limit of 20,000 H-1B petitions filed under the U. S. advanced degree exemption.”
O.K., I know what you’re thinking. “Here he goes again.” Sorry, I can’t help myself. This one is a no brainer.
As a reminder, for those employers who wish to hire foreign nationals as H-1B nonimmigrant workers, unless the position is exempt from the annual cap, there is an annual cap of 65,000 nonimmigrant visas that are available in each government fiscal year (plus an additional 20,000 H-1B nonimmigrant visas for foreign nationals who have earned a master’s degree or higher from a U.S. institution of higher education).
So, in response to the cap being reached pretty much right away, the American Immigration Lawyer’s Association (“AILA”) issued a statement through their President, Doug Stump:
“There is a serious flaw in the laws governing H-1B visas. Instead of reacting to market needs, we discard the applications of tens of thousands of potentially job-creating immigrants every year. … I’m frustrated that we are still in this position. During the recession, we saw that the demand for H-1Bs slowed. The problem is that now that the recovery has been consistent for a few years, it’s become increasingly clear that keeping the same cap we’ve had on these visas for more than ten years is absolutely the last thing we should be doing.”
He’s frustrated? Imagine having to counsel a client that after paying you your legal fees, there’s a chance that all the work that you’ve done for them will go for naught because the government has set up a random lottery system to select which H-1B petitions will be selected and which ones will be rejected. That’s right, a random lottery system. (For you litigators out there, at least when you pick a jury, you have some sort of say in the process, but this is a complete crap shoot.)
Yes, that’s what happens when you receive more than twice the amount of petitions than there are visa numbers available. Indeed USCIS announced that it received approximately 172,500 H-1B petitions during the FY2015 filing period. As a result, it then performed a computer-generated random selection process, which it completed on April 10, 2014, to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption.
Mr. Stump went on in his statement:
“The H-1B process is a complicated one. The petitions are filed by U.S. employers seeking to hire a specific foreign national in a specialty occupation. This is a process that involves a lot of hoops to jump through as it is. If a company files an H-1B petition, the least we should do is consider the request and either approve or reject it on its merits. It isn’t rational to cap these visas arbitrarily and throw out thousands of applications without even a glance.”
I could not agree more. Clients start calling me in January to start preparing for H-1B filing season (which begins on April 1 each year). The simple fact is, there’s a lot of time and expense that goes into preparing an H-1B petition. This is all well-documented, and any Google search will confirm this. So, to go through all this effort and then have USCIS simply reject your client’s petition because the computer did not select it is absolutely ridiculous.
Yes, I know, it’s the law. But it’s a bad law. Again, AILA President Stump:
“Having the talent we need to do the skilled and specialized work that so many companies require in the globally competitive marketplace is vital to our economy and national interests. We need our legislators to take this issue seriously when they move forward on immigration reform because our legal immigration system is in desperate need of an overhaul in order to bring it into the 21st century.”
The same day USCIS made its announcement that the H-1B cap had been reached, the White House issued the following statement regarding the U.S. Department of Homeland Security:
“The Department of Homeland Security (“DHS”) will soon publish several proposed rules that will make the United States more attractive to talented foreign entrepreneurs and other high-skill immigrants who will contribute substantially to the U.S. economy, create jobs, and enhance American innovative competitiveness. These proposed regulations include rules authorizing employment for spouses of certain high-skill workers on H-1B visas, as well as enhancing opportunities for outstanding professors and researchers. These measures build on continuing DHS efforts to streamline, eliminate inefficiency, and increase the transparency of the existing immigration system, such as by the launch of Entrepreneur Pathways, an online resource center that gives immigrant entrepreneurs an intuitive way to navigate opportunities to start and grow a business in the United States.”
The issue of “trailing spouses” is an important one, and locally here in the Capital Region, we have a great resource in Tech Valley Connect, a not-for-profit that, among other things, assists foreign national trailing spouses. But what about the fact that USCIS received more than twice the amount of petitions than there were H-1B numbers within just a few days of being able to file?
We desperately need to increase the number of cap-subject visas available for H-1B nonimmigrants. And that’s not going to happen without strong leadership in the White House, and the support of Congress. The time is still now.
The “Gang of Eight” Introduce a Bipartisan Immigration Reform Bill
This morning, the Gang of Eight offered their vision of Comprehensive Immigration Reform. Senators Schumer, McCain, Durbin, Graham, Menendez, Rubio, Bennet, and Flake introduced the “Border Security, Economic Opportunity, and Immigration Modernization Act,” an 844 page piece of legislation. This is Congress’s starting point for further discussion, debate, no doubt revision, and eventually (hopefully) the signature of President Obama. In a joint statement upon the introduction of the bill, the Senators said:
“Our immigration system is broken and it is time for a national conversation about how to fix it. We believe common-sense immigration reform is vital in order to secure America’s borders, advance our economic growth, and provide fuller access to the American dream. Our bipartisan proposal is a starting point, and will be strengthened by good-faith input and ideas from across the ideological spectrum. We look forward to multiple Senate hearings on this bill, an open committee process with amendments, and a full and fair debate in the Senate.”
I know the topic of immigration and immigration reform invokes deep feelings… both positive and negative, from the general public. People are entitled to their opinions. I have them too. But when I think about these topics, I make myself take off my lawyer hat and try to set aside my political ideology. I try to come at this issue from a very practical point of view. Our immigration system is broken. Is it practical to think that we’re going to deport 11 to 13 million undocumented foreign nationals who are presently in the United States? No. Does it make sense that we educate foreign nationals at some of our best institutions of higher education… and then tell them that they can’t stay here because there’s no visa, either temporary or permanent, that allows them to? No. Our immigration system is broken and it is about time that our national leaders, with the input of relevant stakeholders, discuss, debate and implement comprehensive immigration reform.
Very broadly, the Gang of Eight’s bill addresses such important issues such as (a) border security, (b) legalization for individuals in an unlawful status (a so-called “registered provisional immigrant status” where after ten years an individual could apply for lawful permanent residence, i.e., a Green Card, through a merit-based system), (c) elimination of backlogs in the current family- and employment-based immigrant visa categories, (d) the creation of a startup visa for foreign entrepreneurs who seek to emigrate to the United States to startup their own companies, (e) merit-based visas, where points are awarded to individuals based on their education, employment, length of residence in the U.S. and other considerations, (f) enhanced employment verification rules (i.e., mandatory participation in the E-Verify program, photo-matching, etc.), (g) H-1B nonimmigrant visa reform (e.g., raising the base cap of 65,000 to 110,000, with the potential for the cap to go as high as 180,000, and amending the current 20,000 exemption for U.S. advanced degree holders to be a 25,000 exemption for advanced degree graduates in science, technology, engineering, and mathematics from U.S. schools, along with several other changes), (i) visa programs for lower-skilled workers, and (j) a program to allow current undocumented farm workers to obtain legal status.
It will take some time for this proposed legislation to be reviewed and digested. Then the debate will begin. The debate will be spirited. Hopefully it will be constructive and not divisive.
Is this proposed legislation perfect? I’ve obviously only skimmed it at this point, but the answer is probably no. Is it a good start? It sure is. More than anything, though, “it’s about time.”
The H-1B Visa Cap : NOT Working for Math, Science and Technology-based Businesses
Late yesterday afternoon, at 3:58 PM, not five full days after the H-1B filing season began, U.S. Citizenship and Immigration Services (USCIS) announced that the H-1B cap had been reached. They will now use a “lottery” system to determine which employers’ petitions (who wish to hire foreign workers in “specialty occupations”) it will accept, and which it will reject. “Specialty occupations” include architects, engineers, scientists, biophysicists, biochemists, among others in the science and technology fields.
That’s right, a “lottery” system.
USCIS announced that it had received sufficient H-1B nonimmigrant worker petitions to reach the government’s fiscal year 2014 cap. Each fiscal year, there are 65,000 H-1B nonimmigrant visas made available to foreign workers who are petitioned by U.S. employers, and an additional 20,000 for foreign workers who are exempt from the cap under the advanced degree exemption. Shortly after USCIS’s announcement, I reached out to my clients who we had filed new H-1B petitions for with USCIS and told them, among other things, “keep your fingers crossed.” It’s not often that a lawyer counsels his or her client to keep their fingers crossed, but that’s exactly what I did.
The H-1B cap has not been reached this early since 2008 (just before the economy tanked), when 168,000 H-1B petitions were received by USCIS within the first five days of being eligible to file petitions for that fiscal year. This is yet another clear sign that we need comprehensive immigration reform, and soon.
Imagine yourself as a business owner, and you’ve identified a foreign national this past winter whose unique skills would greatly benefit your company. The first thing I would tell you is that you have to wait to file your petition with USCIS until April 1 (not when we had that first discussion), for an October 1 start date (yes, six months later). I’d also have to tell you that not only would you have to jump through a bunch of hurdles to get everything done in time for the April 1 filing date, but that I could not promise you that USCIS would even accept your petition. How does anyone run a business with that much uncertainty (or delay for that matter)? And yet that’s the very system that we work within.
Rumor has it that the “Gang of Eight” in the U.S. Senate are going to propose comprehensive legislation for immigration reform this coming week. My fingers are crossed.
INSIGHT INTO IMMIGRATION 