On Jan 20 2016 by William A. Stock

As Court Considers Immigration Action, a Progress Report for Employers

In November 2014, President Obama announced a package of proposals he termed the Immigration Accountability Executive Action plan, in response to the failure of his efforts to get Congress to pass a legislative comprehensive immigration reform. His stated goal was to reform administrative practices as much as possible within the confines of the nation's current immigration laws. The largest item in the president's plan, Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), would have permitted an estimated 3 million to 4 million otherwise law-abiding immigrants without status to receive deferrals of deportation if they had a U.S. citizen child. A legal challenge to the DAPA program filed by Texas and other Republican-controlled states resulted in an injunction to the program, and that preliminary injunction is set to be considered by the U.S. Supreme Court this spring.

While the DAPA program was the headline item in the Immigration Accountability Executive Action plan, several parts of the plan involved business immigration rules and regulations. More than a year after the plan was announced, some important regulatory and subregulatory changes have been made, others have been proposed, and some remain incomplete. What follows is a summary of what business has seen and can expect in the final year of the Obama administration to fully implement these parts of the president’s plan.

Several parts of the president’s plan were implemented last year, with mixed results. In March, U.S. Citizenship and Immigration Services (USCIS) issued improved guidance on the legal standards companies must meet to transfer specialists to the United States using the L-1B visa, which was finalized with changes based on employers’ comments in August. This memo comes in response to years of complaints by employers that engineers and others with proprietary knowledge of a company’s products are asked to provide an unreasonably large amount of documentation to prove their eligibility for an L-1B visa. Since the guidance memo was finalized, the anecdotal experience of businesses seeking such visas is no better than it was before the memo.

A rule proposed before the president’s announcement was finalized in February, and provides employment authorization for some spouses of H-1B visa holders who are affected by long visa backlogs. These H-4 spouses used to have to wait for their husband or wife’s green card process to be nearly complete before being able to work in the United States. With visa backlogs in some categories reaching back years or even decades, providing employment authorization to these spouses removes one incentive for H-1B workers to give up and go back to their home countries, taking their knowledge with them. The rule requires the H-1B visa holder to be sponsored by his or her employer for permanent residence, further incentivizing those employers to invest in retaining their workforce in the United States. So far, this rule has been an unqualified success.

A major disappointment came in September and October, however. The plan included a new procedure meant to improve the communication between the U.S. Department of State and USCIS to ensure every authorized employment-based visa is used each year. The plan was meant to help alleviate the long visa backlogs by ensuring that USCIS could accurately report its demand to the State Department. The new procedure allows applicants to submit their final “adjustment of status” applications based on reasonable predictions by the State Department of the yearly visa usage at the beginning of the government’s fiscal year. While the plan as originally announced at the beginning of September would have allowed tens of thousands of employment-based immigrants to get their applications in to USCIS so demand could accurately be predicted, political pressure and fear of lawsuits caused USCIS to scale back the program dramatically, meaning that it now has virtually no practical impact for employment-based immigrants.

The administration has taken concrete steps to implement other parts of the plan, but they are still incomplete as we enter the administration’s final year. As part of the plan, USCIS is revising the Optional Practical Training (OPT) program for international students who graduate from U.S. schools with degrees in high-tech fields; a lawsuit challenging the OPT program is pending in the U.S. Court of Appeals for the D.C. Circuit but is not expected to result in an injunction of the rule. The rule is expected to be finalized in the next 60 days, and contains a modest increase in the duration of OPT while requiring employers to have a concrete training plan for their OPT employees.

At the very end of December, a proposed rule was published to codify several statutory interpretations regarding how H-1B workers can change jobs, and clarifying rules that allow visa holders being sponsored for green cards to change jobs without falling further behind in the visa backlogs. This rule is in the comment period, and will need to be finalized over the summer. Its provisions are generally helpful in providing clarity and stability to H-1B workers looking to change jobs (and thus to pressure employers to treat these workers fairly, lest they jump ship to another employer). Visa holders have expressed disappointment that the rule does not go further to grant them broader employment authorization once an employer has demonstrated that their skills are unavailable in the U.S. economy; the final rule may go further in response to their comments.

Three important parts of the president’s plan remain to be completed. The plan promised a new regulation to improve the permanent labor certification process through which employers request permanent residence for skilled employees, and that proposed regulation is still in the drafting stage. The plan also proposed using the president’s parole authority to create a structured program for entrepreneurs with promising businesses to enter or remain in the United States; that proposal remains outstanding. Finally, the plan proposed that USCIS would issue guidance specifically geared toward entrepreneurs in the “national interest waiver” immigrant category, in which immigrants of exceptional ability can sponsor themselves for permanent ­residence. That guidance is also still in the drafting stages.

Overall, businesses and the immigrants they hire can be pleased with the progress that is being made, but all eyes are on the clock at this point, given that any new regulations will have to be final in 2016 to meet the president’s timetable. While immigration reform will need to be statutory to have the broadest possible impact, the president’s Immigration Accountability Executive Action plan has ­provided some helpful improvements within the current immigration system. Businesses can hope that the remainder of the plan can be implemented before the end of the president’s term.

Reprinted with permission from the January 20, 2016 edition of the The Legal Intelligencer © 2016 ALM Media Properties, LLC. All rights reserved.

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