President Obama's Executive Action on Immigration

The combined population of undocumented immigrants expected to benefit from the Presidential order is estimated to be approximately five million. By law, employers must have a properly completed Form I-9 (Employment Verification Form) on file for every employee hired after Nov. 6, 1986. As with the initial implementation of DACA, many U.S. employers can expect to be faced with current employees who have been granted deferred action presenting new employment authorization documents and perhaps new identities and Social Security numbers. Under guidelines published by U.S. Citizenship and Immigration Services (USCIS) in 2012, an employer receiving updated documentation from an employee should review the employee's previously completed Form I-9 and determine whether to complete a new Form I-9 or to simply complete Section 3 (re-verification) of the previously completed Form I-9.

If any of the following information has changed in Section 1 of the previously completed Form I-9, then an employer should complete a new Form I-9, write the original hire date in Section 2 and attach the new Form I-9 to the previously completed Form I-9: the employee's name, date of birth, attestation or Social Security number. An employer participating in E-Verify should verify the new Form I-9 information through E-Verify.

If, after a review of the previously completed Form I-9, the employer finds that the information in Section 1 has not changed and the employee simply presents a new employment authorization document, then the employer should examine the documentation to determine if it appears to be genuine and related to the employee presenting it, record the document title, document number and expiration date, if any, and sign and date Section 3. Where only Section 3 is completed, the employer should not conduct a new E-Verify check.

High-Skilled Businesses and Workers

In addition to deferring the removal of five million undocumented immigrants, the President outlined proposed changes to a number of employment-based immigration practices aimed at helping U.S. businesses and foreign workers. In this regard, the President's announcement was followed by a memorandum from Department of Homeland Security Secretary Jeh Johnson directing USCIS and Immigration and Customs Enforcement (ICE) to take action on the following eight areas of interest to high-skilled businesses and workers:

1. Work Authorization for Spouses. New rules that give H-4 dependent spouses of H-1B skilled workers authorization to work once the H-1B spouse has an approved employment-based immigrant petition, the penultimate stage of the green card process. This will require USCIS to finalize a proposed rule published earlier this year for public comment. Dependent spouses of intracompany transferees (L-1) and treaty investors and employees (E) are eligible for work authorization under current law.

2. Exemption from H-1B Cap. A new definition of “affiliated with an institution of higher education” will allow for broader exemption from the annual cap on H-1B visas. This change is expected to benefit a relatively small number of nonprofit research organizations. Current law requires a showing that the petitioning employer is: 1) connected or associated with an institution of higher education through shared ownership or control by the same board or federation; 2) operated by an institution of higher education; or 3 ) attached to an institution of higher education as a member, branch, cooperative or subsidiary.

3. Ensuring Use of Employment-Based Visa Numbers. USCIS to work with the State Department to ensure prospectively that employment-based visa numbers are used each fiscal year and that any unused numbers are preserved for use in subsequent years. Hundreds of thousands of employment-based numbers have gone unused in prior fiscal years because of the way in which the annual allotment of 140,000 employment-based visas is allocated by the State Department. Possible “recapture” of those unused visa numbers from prior fiscal years is likely to be raised in the Presidential Memorandum described below.

4. Revisions to Monthly Visa Bulletin. USCIS to work with the State Department to improve the system for determining when immigrant visas are considered “available” to applicants during the fiscal year. This will allow for applications for immigrant visas and adjustment to permanent residence to be filed much earlier for those who have been waiting in the visa queue and will provide relief for dependent children who might otherwise “age out” while waiting in line under the current process. If, as expected, the State Department makes the employment-based visa categories “current,” it likely will do so only for a brief period. Employers sponsoring their nonimmigrant employees for green cards will want to follow developments closely to ensure they are ready to assist employees with their applications for adjustment of status and those of family members.

5. Expanded Green Card Portability. Regulatory changes would allow workers with approved employment-based immigrant visa petitions (Form I-140) to move or change jobs even while they wait for a visa to become available (which can take years in some cases). Under current interpretation, the worker's green card application must have been pending for six months or more before the worker may change jobs. Also, USCIS will provide guidance for the definition of “same or similar” job for purposes of expanding eligibility for a green card applicant to move to a new job or employer. This will help not only those in the green card process who wish to change employers, but also those employees who move to a different job with the same employer.

6. STEM Graduates. Post-graduate (OPT) work training authorization for U.S. college graduates in science, technology, engineering and mathematics (STEM) can last up to 29 months ' this would be extended. In addition, USCIS would approve extended OPT for STEM graduates who are pursuing non-STEM advanced degrees, such as an MBA. The Secretary has also directed establishment of stronger ties between OPT and the degree-granting institutions. Finally, labor market protections, which could include a prevailing wage requirement, will be imposed in order to safeguard the interests of US workers in related fields.

7. Promoting Research and Development in the United States. Enhanced and expanded options designed to encourage foreign entrepreneurs to invest, create jobs and generate revenue in the United States, including a broader application of the “public interest” parole authority and “national interest” waiver of the labor market test and job offer requirements for green card status.

8. Bringing Greater Consistency to the L-1B Visa Program. Noting the “vague guidance and inconsistent interpretation of the term 'specialized knowledge,'” which has created uncertainty for companies managing global workforces as they “choose where to establish new or expanded operations, research centers, or product lines, all of which stand to benefit the U.S. economy,” the Secretary has directed USCIS to issue a policy memorandum that provides clear, consolidated guidance on what constitutes specialized knowledge for L-1B visa eligibility. Definitive guidance on this issue is long overdue.

In addition, the Department of Labor announced an effort aimed at streamlining the U.S. labor market test (PERM) required to be conducted by employers sponsoring their workers for green cards. Proposed PERM regulations are expected in FY2016.

Conclusion

Further reforms may be on the horizon. The President announced plans to issue a Presidential Memorandum on the need for structural reform to the United States immigration system, including proposals for visa modernization, elimination of redundant systems and procedures and better methods to detect visa fraud. This interagency process is expected to be completed within 120-180 days.

Paul Virtue is a partner in Mayer Brown's Employment & Benefits group, focusing on global immigration and mobility issues. Based in Washington, DC, he represents clients on a broad range of employment-related immigration and compliance issues. Reach him at 202-263-3875 or [email protected].

Headlining the Executive Actions announced by President Obama on Nov. 20, 2014, were plans to defer the removal of, and to provide work authorization to, undocumented immigrants who have lived in the United States for more than five years and are parents of U.S. citizens or lawful permanent residents. In addition, the administration will expand the existing Deferred Action for Childhood Arrivals (DACA) initiative.

DACA was implemented in 2012 to provide relief from removal and work authorization to young people who have been in the United States for at least five years, were born after 1981, met certain education and public safety criteria, and who entered the United States as children before June 15, 2007. The Presidential order will revise the DACA guidelines to allow qualified individuals of any age to apply if they were brought to the United States as children before Jan. 1, 2010. Both programs will provide temporary relief for three years.

Employer Compliance with Employment Verification Requirements

The combined population of undocumented immigrants expected to benefit from the Presidential order is estimated to be approximately five million. By law, employers must have a properly completed Form I-9 (Employment Verification Form) on file for every employee hired after Nov. 6, 1986. As with the initial implementation of DACA, many U.S. employers can expect to be faced with current employees who have been granted deferred action presenting new employment authorization documents and perhaps new identities and Social Security numbers. Under guidelines published by U.S. Citizenship and Immigration Services (USCIS) in 2012, an employer receiving updated documentation from an employee should review the employee's previously completed Form I-9 and determine whether to complete a new Form I-9 or to simply complete Section 3 (re-verification) of the previously completed Form I-9.

If any of the following information has changed in Section 1 of the previously completed Form I-9, then an employer should complete a new Form I-9, write the original hire date in Section 2 and attach the new Form I-9 to the previously completed Form I-9: the employee's name, date of birth, attestation or Social Security number. An employer participating in E-Verify should verify the new Form I-9 information through E-Verify.

If, after a review of the previously completed Form I-9, the employer finds that the information in Section 1 has not changed and the employee simply presents a new employment authorization document, then the employer should examine the documentation to determine if it appears to be genuine and related to the employee presenting it, record the document title, document number and expiration date, if any, and sign and date Section 3. Where only Section 3 is completed, the employer should not conduct a new E-Verify check.

High-Skilled Businesses and Workers

In addition to deferring the removal of five million undocumented immigrants, the President outlined proposed changes to a number of employment-based immigration practices aimed at helping U.S. businesses and foreign workers. In this regard, the President's announcement was followed by a memorandum from Department of Homeland Security Secretary Jeh Johnson directing USCIS and Immigration and Customs Enforcement (ICE) to take action on the following eight areas of interest to high-skilled businesses and workers:

1. Work Authorization for Spouses. New rules that give H-4 dependent spouses of H-1B skilled workers authorization to work once the H-1B spouse has an approved employment-based immigrant petition, the penultimate stage of the green card process. This will require USCIS to finalize a proposed rule published earlier this year for public comment. Dependent spouses of intracompany transferees (L-1) and treaty investors and employees (E) are eligible for work authorization under current law.

2. Exemption from H-1B Cap. A new definition of “affiliated with an institution of higher education” will allow for broader exemption from the annual cap on H-1B visas. This change is expected to benefit a relatively small number of nonprofit research organizations. Current law requires a showing that the petitioning employer is: 1) connected or associated with an institution of higher education through shared ownership or control by the same board or federation; 2) operated by an institution of higher education; or 3 ) attached to an institution of higher education as a member, branch, cooperative or subsidiary.

3. Ensuring Use of Employment-Based Visa Numbers. USCIS to work with the State Department to ensure prospectively that employment-based visa numbers are used each fiscal year and that any unused numbers are preserved for use in subsequent years. Hundreds of thousands of employment-based numbers have gone unused in prior fiscal years because of the way in which the annual allotment of 140,000 employment-based visas is allocated by the State Department. Possible “recapture” of those unused visa numbers from prior fiscal years is likely to be raised in the Presidential Memorandum described below.

4. Revisions to Monthly Visa Bulletin. USCIS to work with the State Department to improve the system for determining when immigrant visas are considered “available” to applicants during the fiscal year. This will allow for applications for immigrant visas and adjustment to permanent residence to be filed much earlier for those who have been waiting in the visa queue and will provide relief for dependent children who might otherwise “age out” while waiting in line under the current process. If, as expected, the State Department makes the employment-based visa categories “current,” it likely will do so only for a brief period. Employers sponsoring their nonimmigrant employees for green cards will want to follow developments closely to ensure they are ready to assist employees with their applications for adjustment of status and those of family members.

5. Expanded Green Card Portability. Regulatory changes would allow workers with approved employment-based immigrant visa petitions (Form I-140) to move or change jobs even while they wait for a visa to become available (which can take years in some cases). Under current interpretation, the worker's green card application must have been pending for six months or more before the worker may change jobs. Also, USCIS will provide guidance for the definition of “same or similar” job for purposes of expanding eligibility for a green card applicant to move to a new job or employer. This will help not only those in the green card process who wish to change employers, but also those employees who move to a different job with the same employer.

6. STEM Graduates. Post-graduate (OPT) work training authorization for U.S. college graduates in science, technology, engineering and mathematics (STEM) can last up to 29 months ' this would be extended. In addition, USCIS would approve extended OPT for STEM graduates who are pursuing non-STEM advanced degrees, such as an MBA. The Secretary has also directed establishment of stronger ties between OPT and the degree-granting institutions. Finally, labor market protections, which could include a prevailing wage requirement, will be imposed in order to safeguard the interests of US workers in related fields.

7. Promoting Research and Development in the United States. Enhanced and expanded options designed to encourage foreign entrepreneurs to invest, create jobs and generate revenue in the United States, including a broader application of the “public interest” parole authority and “national interest” waiver of the labor market test and job offer requirements for green card status.

8. Bringing Greater Consistency to the L-1B Visa Program. Noting the “vague guidance and inconsistent interpretation of the term 'specialized knowledge,'” which has created uncertainty for companies managing global workforces as they “choose where to establish new or expanded operations, research centers, or product lines, all of which stand to benefit the U.S. economy,” the Secretary has directed USCIS to issue a policy memorandum that provides clear, consolidated guidance on what constitutes specialized knowledge for L-1B visa eligibility. Definitive guidance on this issue is long overdue.

In addition, the Department of Labor announced an effort aimed at streamlining the U.S. labor market test (PERM) required to be conducted by employers sponsoring their workers for green cards. Proposed PERM regulations are expected in FY2016.

Conclusion

Further reforms may be on the horizon. The President announced plans to issue a Presidential Memorandum on the need for structural reform to the United States immigration system, including proposals for visa modernization, elimination of redundant systems and procedures and better methods to detect visa fraud. This interagency process is expected to be completed within 120-180 days.

Paul Virtue is a partner in Mayer Brown's Employment & Benefits group, focusing on global immigration and mobility issues. Based in Washington, DC, he represents clients on a broad range of employment-related immigration and compliance issues. Reach him at 202-263-3875 or [email protected].