On November 20, 2014, President Obama announced various executive actions aimed at reforming our nation’s immigration system. While the media focused much of its attention on the executive action’s benefits for undocumented immigrants, the President also announced changes that will benefit many US employers and their lawfully present foreign employees. So, what does this mean?
Highlights Related to Foreign Students and Employees
Here are a few of the executive actions relating to foreign students and foreign employees:
- There will be earlier eligibility for work permits and travel authorization while waiting in line for a green card, thus reducing the need for H-1B (or other work visa) extensions: Currently, many individuals with approved I-140 visa petitions (who would otherwise be eligible to apply for a green card) must wait several years before a visa becomes available to apply for a green card. President Obama’s executive immigration action directs the United States Citizenship and Immigration Services (USCIS) to issue regulations to allow individuals with approved I-140 petitions to receive the benefits of being a green card applicant while awaiting visa availability. These benefits include a work permit and travel authorization.
- It makes promotions, or new jobs more accessible for employees pursuing a green card through their employer: President Obama’s executive immigration action directs USCIS to consider regulatory or policy changes to ensure that approved, long-standing visa petitions remain valid in certain cases where an employee changes jobs or employers.
- It allows for work permits for H-4 spouses: AH-1B professional workers’ spouses and children hold H-4 status. Yet most people in H-4 status are not eligible to apply for work authorization. The executive action proposes to allow H-4 derivatives to apply for work authorization as long as the H-1B principal beneficiary has an approved I-140 petition. Also, in accordance with previous VAWA legislation, regulations are also being finalized for abused H-4 derivatives (and certain other spouses of non-immigrant workers) to file for work permits.
- There is longer OPT work authorization for F-1 students: The executive action aims to extend the amount of time an F-1 student or graduate can work pursuant to OPT (Optional Practical Training). Proposed regulatory changes include expanding the degree programs eligible for extended work authorization as well as extending the time period and use of OPT work authorization in the STEM fields (Science, Technology, Engineering, Math).
- There is more guidance and consistency in L-1B visa decisions: The L-1B visa allows employers to transfer certain employees with “specialized knowledge” from their foreign affiliates to the U.S. Unfortunately, increasingly narrow and inconsistent interpretation of the term “specialized knowledge” by US CIS has led to uncertainty and difficulty for multinational companies. US CIS is to provide further guidance, via policy memoranda, on the meaning of “specialized knowledge” in order to ensure consistency and clarity in L-1B eligibility and decisions.
* Please note that this is a summary of the effects the executive action will have on US employers with foreign national employees. In the coming months, we will know more about how the executive action will be implemented. Follow this link for more details on the executive actions from the Department of Homeland Security.
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