Newsletter 22: Presidential Announcement

Newsletter 22: Presidential Announcement

Dear Friends of the Firm:

Today, our country took a big step forward to improve our immigration system. President Obama announced that he will provide immediate relief for many employees and undocumented families, and offered Congress the opportunity to enact the permanent reforms that our country desperately needs. The most significant immigration developments include the following initiatives. See below for additional details. We’d be happy to discuss your circumstances in a consultation.

  • Green Card Applications for 410,000 Employees: Employees with an approved employment-based immigrant petition can submit an application for a green card while they wait for a visa number to become available.
  • Up to 4.4 Million Undocumented: Two initiatives will grant work authorization and a shield against deportation for an estimated 4.4 million undocumented immigrants.

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The President’s newly announced immigration initiatives include the following:

  • Relief for 410,000 Employees Awaiting a Green Card Visa Number: Employees with an approved employment-based immigrant petition can submit an application for a green card while they wait for a visa number to become available. Advantages: They can get Work Authorization Documents (EAD), travel documents (Advance Parole), and have more flexibility if their position with their current employer comes to an end. This will not become effective for many months because regulations must be written.
  • Undocumented: Protection from Deportation and Work Authorization:
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    • Deferred Action for Parents (DAP): Parents with U.S. citizen or permanent resident children (of any age) who have been in the U.S. continuously since January 1, 2010 will be eligible to apply for a 3-year shield against deportation (“deferred action”). Applicants must pass background checks and pay taxes. Applications will be accepted in approximately 6 months.
    • Deferred Action for Childhood Arrivals (DACA): Some of the requirements include that the applicant entered the U.S. before age 16, is now over age 15, has been in the U.S. since January 1, 2010, has a high school degree, and has only an insignificant criminal record.

  • More Green Card Visa Numbers: To make sure every available visa number is used, government agencies will develop more precise systems. Hundreds of thousands of visa numbers have gone unused in the last few decades. Some of these unused visa numbers could be recaptured so that applicants can obtain green cards more quickly. Also, visa numbers for employees’ family members might not be counted against the quota, leaving more visa numbers available for other employees (and their families). It will likely take several months to optimize these systems.
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  • Work Authorization for Spouses of H-1B Professionals: H-4 nonimmigrant spouses who meet the eligibility requirements can apply for an Employment Authorization Document (EAD). Those qualified would include: (1) spouses of an H-1B employee with an approved immigrant visa petition; or (2) spouses of an H-1B employee with a labor certification pending for 1 year. Regulations to implement this change are expected in December or January.
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  • Entrepreneurs: Certain entrepreneurs and investors will have a new immigration option. No further details are available yet. This new option will not be available for several months because the government will have to write regulations.
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  • Researchers, Entrepreneurs, Inventors, and Founders: National Interest Waiver green card applications will be available for individuals in these categories. Applications will likely be accepted in the next few months because a policy letter (not regulations) will implement the change.
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  • Intracompany Transferees: Specialized knowledge employees will more easily be able to obtain L-1B status because the government will clarify a more lenient interpretation of the law than has been used in recent years. This change will be implemented several months from now by regulations.
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  • Student Work Authorization: Students studying science, technology, engineering, and mathematics (STEM) at U.S. universities may be eligible for more than the usual 29 months of OPT Employment Authorization. Additional expansions of this program may occur. Changes will be implemented several months from now by regulations.
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  • Provisional Waivers for Spouses and Children of Green Card Holders: The provisional waiver process benefits individuals who are eligible to apply for a green card, but must also apply for a “waiver” because they have been in the United States unlawfully. Spouses and children of green card holders (not just US citizens) will be able to apply for a provisional waiver from within the U.S. before departing for an interview at a U.S. consulate abroad. This provision will also help many gay and lesbian couples whose marriages are now recognized by U.S. immigration laws and where the foreign-national needs a waiver to apply for a green card.
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  • Labor certifications: The most popular way for employees to obtain a green card is through a labor certification showing that there are no qualified U.S. workers for a particular position. The government will make changes to the complex rules to modernize the process.

Tonight, President Obama said of immigrants, “their hopes, dreams, and patriotism are just like ours.” This is a victory for reform and a step in the right direction toward fixing our country’s broken immigration system. However, there is still more work to be done. Anti-reform members of Congress will stop at nothing to thwart the president’s action.

President Obama did not provide a permanent legal status to anyone – only Congress can do that. Many pieces of the President’s executive action are still unclear, and the details of many initiatives may not be known until the government provides more information. Some of the President’s reforms will require regulations (laws) before they are implemented, while others can be launched based on agency memoranda. The details of the initiatives will be unveiled piecemeal in the coming weeks and months. Stay tuned!


Note: This publication serves only as general information and is not a substitute for consultation with an attorney who can assess the specifics of your case and inform you of the constant changes in law and policy. No attorney-client relationship is formed by the transmission of this information until a legal service contract has been signed by both of us.