Executive Action on Immigration: What Employers Can Expect

Tuesday, December 16, 2014 - 18:38

On November 20 and 21, President Obama announced his plan to use executive action to reform the U.S. immigration system, in response to years of gridlock in Congress and mounting pressure from immigration advocacy groups. The principal focus of the anticipated reforms is relief for an estimated 4 to 5 million undocumented foreign nationals. But President Obama’s plans also include some important improvements to the employment-based immigration system that could significantly benefit sponsoring employers and their foreign workers.

Green Card Reforms

Chief among the business-based reforms are anticipated improvements to the system for allocating employment-based immigrant visas. 

Under current law, just 140,000 immigrant visas are available annually to foreign nationals sponsored for permanent residence on the basis of their U.S. employment, a quota that includes spouses and children and that is significantly oversubscribed for most employer-sponsored foreign nationals. Due to the backlogs, many eligible foreign nationals face years-long delays even to file their green card applications. 

Though an increase in this annual cap on visas cannot take place without an act of Congress, the administration plans to make changes in the way that the green card queue is administered, which will benefit both employers and employees. Anticipated reforms would make it possible for sponsored workers to file their applications for adjustment of status to permanent residence earlier, giving them (and their spouses and children) access to interim travel and work authorization benefits. Though the reforms would not speed up the process of attaining permanent residence, it would make it easier for employer-sponsored green card applicants to advance in their careers or switch jobs more easily, so that they are not tied to a single employer and employment position during the sometimes lengthy pendency of their applications.

Nonimmigrant Visa Reforms

The administration also plans several improvements to the employment-based temporary work visa system. 

First among these is a regulation that would permit the spouses of certain H-1B professionals to apply for employment authorization. Under current law, the H-4 spouses of H-1B workers are not eligible to work in the United States in that status – a significant drawback to many foreign nationals considering jobs in the United States. The Department of Homeland Security has promulgated a rule that will allow H-4s to apply for employment authorization if their H-1B spouse has begun the employer-sponsored green card process. Employment authorization would be valid for up to two years.

In addition, the administration is also likely to seek a broadening of the optional practical training (OPT) program for F-1 students who have completed a U.S. degree. Under current law, foreign students may be authorized to engage in up to 12 months of post-graduate employment in a field related to their major course of study. An additional 17 months is available to those whose most recent U.S. degree is in a designated STEM field and who will work in that field for an employer that is enrolled in E-Verify, the federal government’s employment eligibility verification system. Though the exact form of expansion is not yet known, it is likely to include a broader list of eligible degree fields and a longer (beyond the current 29 months) period of work authorization, but also labor market protections for U.S. workers, which have long been urged by critics of the program.

The administration is also promising mechanisms to attract and retain inventors, investors, researchers and company founders, particularly those who have been awarded substantial U.S. investor financing and who have promising innovations that can create jobs and advance U.S. technological competitiveness. For those wishing to become permanent residents, this could mean the ability to seek a “national interest waiver” – that is, an exemption from the burdensome labor certification requirement for those who can demonstrate special merit and significant potential contribution to the U.S. national interest. The administration is also looking at ways to broaden temporary stay options for innovators and investors who do not easily fit into existing work visa categories.

Increased Compliance Obligations

The administration’s planned actions to benefit undocumented workers will also have an impact on employers. The expansion of deportation relief and employment authorization for the undocumented population means a greatly expanded labor pool, but with it comes potential new compliance concerns for employers, particularly those with a large lower-skilled workforce. When a current employee comes forward to announce his or her eligibility for or receipt of benefits under the administration’s deferred action program, a host of questions arise, all stemming from whether the employer now has actual or constructive knowledge of the employee’s current lack of work authorization. We are hoping that the administration adopts some form of interim authorization so that these applicants can come “above ground” while they are waiting for their application to be processed; this, in turn, would protect employers.

How the Reforms Will Be Implemented

At this stage, the key details of reform are not yet known. Employment authorization for the spouses of H-1Bs is likely to be the first program implemented, with a final regulation from DHS expected in January or February 2015. Employers sponsoring workers for permanent residence could see an unprecedented opportunity to file green card applications this coming summer, including a period of time when every visa category will be “open” so that all eligible adjustment applicants can file.


Michael D. Patrick is a Partner at Fragomen, Del Rey, Bernsen & Loewy, LLP, resident in its New York office. He may be contacted via email at mpatrick@fragomen.com. Nancy Morowitz, Counsel at the firm, assisted in the preparation of this column. To learn more about Fragomen, please visit http://www.fragomen.com.