Immigration Accountability Executive Action Explained

Last week, President Obama announced his Immigration Accountability Executive Action (IAEA). The IAEA addressed Employment-Based immigration issues that are meant to boost the United States economy.

I. Portable Work Authorization for High-Skilled Workers awaiting Green Cards and their Spouses; Allocation of Immigrant Visas

This would affect employees with approved “LPR applications” who often must wait many years for their immigrant visas to become available. Department of Homeland Security (DHS) will make regulatory changes to allow these workers to move or change jobs more easily (“portability”), to allow natural career progression, general job mobility and to provide relief to workers facing lengthy adjustment delays.

DHS is finalizing new rules to provide certain H-1B spouses (ex. H-4) employment authorization as long as the H-1B spouse has an approved LPR application.

U.S. Citizenship and Immigration Services (USCIS) is directed to work with the U.S. Department of State to develop a method to allocate immigrant visas to ensure that all immigrant visas authorized by Congress are issued to eligible individuals when there is sufficient demand for such visas.

USCIS is directed to work with the Department of State to modify the Visa Bulletin system to more simply and reliably make determinations of visa availability.

II. Enhancing Options for Foreign Entrepreneurs

DHS will expand immigration options for foreign entrepreneurs who meet certain criteria for creating jobs, attracting investment, and generating revenue to ensure that our system encourages those entrepreneurs to grow the U.S. economy. The criteria will include income thresholds so that these individuals are not eligible for certain public benefits like welfare or tax credits under the Affordable Care Act. The standards for grants of national interest waivers will be clarified for applicants who are foreign inventors, researchers and founders of start-up enterprises to benefit the U.S economy.

The other immigration options will include the authorization of Parole, on a case-by-case basis, to eligible inventors, researchers and founders of start-up enterprises who may not yet qualify for a national interest waiver, but who:

Have been awarded substantial U.S. investor financing; or Otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.

III. Extending On-The-Job Training for STEM Graduates of U.S. Universities

DHS will propose changes to expand and extend the use of the existing Optional Practical Training (OPT) program and require stronger ties between OPT students and their colleges and universities following graduation.

IV. Streamline Employment Based Immigration Process for Foreign Workers and U.S. Employers

DHS will clarify its guidance on temporary L-1 visas for foreign workers who transfer from a company’s foreign office to its U.S. office. The guidance will address the meaning of L-1B “specialized knowledge” workers to bring greater clarity and integrity to the L-1B program, improve consistency in adjudications, and enhance companies’ confidence in the program.

The U.S. Department of Labor (DOL) will take regulatory action to modernize the labor market test (“PERM Program”) that is required of employers that sponsor foreign workers for immigrant visas while ensuring that American workers are protected. Specifically, DOL will seek input on the following:

  • Options for identifying labor force occupational shortages and surpluses and methods for aligning domestic worker recruitment requirements with demonstrated shortages and surpluses;
  • Methods and practices designed to modernize U.S. worker recruitment requirements;
  • Processes to clarify employer obligations to insure PERM positions are fully open to U.S. workers;
  • Ranges of case processing timeframes and possibilities for premium processing; and
  • Application submission and review process and feasibility for efficiently addressing nonmaterial errors.

These new provisions may raise many questions that our immigration attorneys are here to answer. Simply call the Executive Order Employer (E.O.E.) Hotline at 1-866-427-0152.

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