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Predications on How President Obama’s Executive Action Will Help U.S. Employers

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Predications on How President Obama’s Executive Action Will Help U.S. Employers

November 19, 2014 | Written by Laura J. Mazel

As we await President Obama’s promised executive action on immigration, WSM partner Laura J. Mazel predicts possible fixes affecting U.S. employers and their valued employees.

With presidents from both sides of the aisle taking executive action on immigration in the past 15 years, President Obama is gearing up to solidify his own immigration legacy by year end.  Employers and counsel may expect changes in the following areas on the business immigration front:

  1. EADs for H-4 spouses. 
  2. Exemption from the 140,000 employment-based immigrant visa numbers for derivative family members. thereby eliminating or substantially decreasing visa backlogs depending upon one’s nationality.
  3. Creation of a fast-track green card pathway for foreign nationals with U.S. STEM degrees. The Senate Immigration Bill passed in June 2013 called for fast-track green cards to be "stapled" to the passports of advanced STEM degree holders.

The fallout from executive action likely will be continued enforcement on the I-9 front and possibly a push for mandatory E-Verify.

Benefits of a Final H-4 Family Visa Rule

Fiscal-year H-1B annual quotas thwart high-tech employers in a way that harms innovation and our economy. Currently, annual H-1B allotments are at a standstill at 65,000 visas and an additional 20,000 set aside for holders of U.S. advanced degrees. The quota was exhausted within the first week of filing last spring—six months ahead of the requested H-1B starting date of Oct. 1, the first day of the government's new fiscal year. The coming fiscal year H-1B season this spring will be even more challenging given pent-up demand. Further, there are few options for immigrant entrepreneurs graduating from top schools who want to start their own businesses, despite the USCIS' self-touted "Entrepreneurs-in-Residence" program, which sadly has yielded no tangible results. On top of that, immigration adjudicators at regional USCIS service centers continue to invent harsher standards for adjudicating H-1B specialty occupation petitions that are not found in the regulations, bringing delays and additional costs. Many dual-career couples abroad face the challenge of which partner's career will take precedence in the unpredictable race for H-1B work authorization.

In May, the Department of Homeland Security published a proposed rule in the Federal Register to grant separate work authorization to H-4 dependent spouses of H-1B employees far enough along in the permanent residence process. Under the proposed rule, which received more than 5,000 comments during the open comment period, H-4 spouses would have two ways to be eligible for work authorization. An employer would need to have either obtained an approved I-140 immigrant visa petition on the H-1B worker's behalf, or obtained H-1B extensions on the H-1B worker's behalf beyond the normal six years of H status because the employer filed a PERM application at least 365 days before.

The Immigration and Nationality Act does not specifically prohibit H-4 spouses from working the moment their spouses obtain H-1B status, much like exists for spouses of treaty investor or trader E visa holders. If the government makes work authorization incident to status, advocated by many commenters to the proposed rule including me, both industry and foreign nationals will benefit. If the government instead links eligibility for H-4 work authorization to the primary employee's being farther along in the green card process, employers and counsel may expect a deluge in requests to kick-start the green card process. As a result, assuming the tech market for talent remains hot, employers may need to revisit their sponsorship policies.

Continued Enforcement on I-9 and E-Verify Fronts

Whatever occurs, after executive action, employers and counsel should prepare for E-Verify to become mandatory over a several-year rollout period, just like the Senate wanted in 2013. The good news about E-Verify is that enrolled employers gain the ability to hire U.S. STEM degree holders for a total of up to 29 months after graduation before needing to obtain an H-1B visa to keep the employee on payroll. Finally, given the anticipated uptick in work authorization availability, whether for parents of undocumented children or professional workers, employers should ramp up their I-9 training. Companies should be mindful of recent cases finding violations of anti-discrimination provisions of the Immigration Reform and Control Act when employers ask foreign national employees to present more than required, such as asking to re-verify an I-9 when a green card has expired. The U.S. Department of Justice's Office of Special Counsel for Immigration-Related Unfair Employment Practices has already settled 14 I-9-related cases in 2014. Two settlements called for more than $200,000 in civil penalties.

It will be good news for the tech industry if President Obama delivers before year-end, despite Republican threats. There is precedence for action on immigration and for common sense. As part of this, Obama also must deliver on business immigration.

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