With so much of discussion among attorneys, bloggers, press, etc. around the Obama executive action on immigration and its impact to internationals, it could be very confusing. The goal of this article is to summarize the key points as outlined by President Obama on the below topics
- H4 Visa holders EAD employment Options
- F1 Visa – OPT Program Changes
- L1B Visa – Clarification by DHS
- Employment Based Visa Systems, Visa Bulletin Systems Modernization
- Moving Jobs Clarification during Green Card Processing
- Travel options for pending Green Card holders
- Foreign Entrepreneurs – Startup Visas options
There are many other topics that the President outlined in his executive action, but we will NOT cover such topics around illegal immigrants’ provisions, plans around securing borders, etc.
H4 Visa Holders EAD Employment Options: Earlier this year, which is 2014, USCIS published H4 EAD interim Rule and it went through the public comment period as well. USCIS mentioned in its memo that DHS and USCIS are about to publish the final rule. This is nothing new, it is just that they re-iterated in the executive action the commitment to have at least certain H4 Visa holders work on EAD. This could be the first rule to be implemented. Many speculate it could be in the next couple of months…But, there is no timeline as such indicated by USCIS or DHS.
F1 Visa – OPT Program Changes : The executive action outlines that the current Optional Practical Training (OPT) Program for international students, which allows them to work in their degree field after graduation for 12 months with 17 months extension for STEM (science, technology, engineering, and mathematics ) categories, be reviewed and modified. The goal is to add more degree programs to STEM Category and also consider extending the OPT duration from 12+17 Months to more. USCIS director has given an action for USCIS to work with Immigrations and Customs Regulations (ICE) and come up with the proposal.
L1B Visa Program – Clarification by DHS: L1B Visa helps global companies do intra-company transfers to have their executives, managers and someone with “Specialized Knowledge” move to USA from their foreign offices to help business in USA. Currently, the L1B program does not have clear definitions or guidance for approving L1B Petitions around “specialized knowledge”. As per the executive action, USCIS will define and publish a policy memorandum that provides a clear guidance on what “specialized knowledge” means and how the petitions will be adjudicated around that. The goal is to have global companies’ confidence in L1B program, as lately many companies are not applying for L1B visa with heavy rejections and RFEs.
Employment Based Visa Systems, Visa Bulletin Systems Modernization: There have been long waits for green cards and the current systems do not give correct information, especially Visa Bulletin systems. The directive from USCIS director is to work with Department of State to modernize the visa bulletin systems, provide green cards to the eligible individuals when there is demand for such individuals, review the current policy and make changes as needed to help the approved employment based petitions remain valid, when they change jobs. The goal is to have a predictable visa system and avoid long waits.
Moving Jobs Clarification during Green Card Processing : With current green card processing, employees who have applied for adjustment of status, but in waiting mode due to lack of Green Card numbers, stick to their old/same jobs with same employers, including avoiding promotions as they believe that it could impact their Green Card processing due to lack of clarity on what ‘Same or Similar Job’ means by USCIS. The USCIS directive is to clarify and publish a memorandum that will clearly define and give guidance on what is a ‘Same or Similar Job’ to help employees change jobs. The goal is to help employees grow in their careers in normal progression with pending green card application.
Travel options for pending Green Card holders : One of the biggest issues with pending Green Card applications is that many do not want to travel as they may not have valid visa for re-entry. To avoid this, the executive action outlines that DHS provide temporary status permission options like advance permission, which is also called as Advance Parole, for pending Green Card application holders (also called as Lawful Permanent Residents). Currently only certain green card applicants gets parole, the goal is to extend this to others so that all can travel abroad and come back.
Foreign Entrepreneurs – Startup Visas options : The execution action outlines that national interest waiver be given for outstanding foreign inventors, researchers so that they can help US economy. Under such act, the foreign Entrepreneurs maybe given more options on visas to work in US, if they raise US investor financing or promise of creating more jobs and help US economy grow.
All the above mentioned are steps in the positive direction for many of the foreign students and workers in America working on H1B Visa, who have been waiting for years, especially H4 visa spouses and many others missing families, not taking promotions, etc. The reality is that all of these do NOT have any deadline or timeline set. It could be almost an year by the time all these get implemented. Many attorneys speculate that the clarity will come in the upcoming months and these could be laws by end of 2015. We just have to wait and see.
What do you think of the immigration executive action by president Obama ?
Did I miss anything related our context ? Your thoughts ?