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What President Obama's Immigration Directives Mean For Businesses

November 20, 2014

Earlier this evening, President Obama announced executive action that would significantly impact employment and investment-based immigration. To implement these directives, the White House released its plan on immigration reform, outlining in detail specific changes to many areas that would impact businesses. Those announced changes include:

Job Portability

• Foreign nationals with an approved Form I-140, Immigrant Visa Petition, who are still waiting to complete the visa approval process would receive clarified guidance regarding how changes in their employment, such as a promotion or transfer, may impact their green card application.

Permanent Labor Certification (PERM)

• The filing process for foreign nationals seeking an employment-based green card through the PERM labor certification process would be modernized and streamlined.

L-1B Specialized Knowledge Transferees

Mancini• Employers would receive clarified guidance as to what constitutes “specialized knowledge” for L-1B intracompany transferee visa applications. This guidance should help employers better determine which employees are eligible for the visa and to improve the chances of approval for their application.

Pre-Registration for Adjustment of Status (“Green Card”) Applications

• Foreign nationals with an approved Form I-140, Immigrant Visa Petition, who are facing long waits before they are eligible to file their adjustment of status, or “green card,” applications, would be allowed to “pre-register.” While impacted foreign nationals will still face the same waiting time before receiving their green card, they would be able to obtain the benefits of a pending green card application, such as increased job portability and employment and travel authorization, while waiting for a visa number to become available.

H-4 Employment Authorization

• Spouses of H-1B visa holders may be eligible for employment authorization. Under current law, H-4 spouses may not work.

Foreign Entrepreneurs

• Certain foreign investors would be eligible for parole in the U.S. or, if already in the U.S., for parole in place, for job creation. Parole is authorization to enter the U.S. for a temporary period of time. These changes would make it easier for investors to come to the U.S. and engage in entrepreneurial activities that are not permitted under current law.

• Entrepreneurs, researchers, inventors, and founders would be eligible for national interest waivers, a type of immigrant visa petition that provides a path to eligibility for a green card.

Optional Practical Training (OPT)

• The length of time foreign students can work on OPT status following the completion of their studies would be expanded for STEM (Science, Technology, Engineering and Mathematics) graduates in order to make it easier and quicker for skilled foreign graduates to stay in the United States.

Visa Quotas

• Efforts would be made to significantly improve the allocation of visas under the current quota system including reevaluating how derivatives are counted towards the quota and potentially recapturing unused visa numbers.

Rebecca Mancini
+1.734.668.8937
mancini@millercanfield.com