2014 Presidential Action Email #4

December 2, 2014

Dear Friends,

This fourth email outlines how the new Presidential Action will affect employment of certain foreign workers. When it is available, we will certainly give further information.

Timing of Filing for Adjustment of Status

This allows beneficiaries of an approved employment-based immigrant petition who are caught in quota backlogs to file for adjustment of status or to make already filed applications current, regardless of quotas. This is expected to impact about 410,000 people, but must be done by regulation. It is not clear if this would simply clear up the current backlogs or if it would apply permanently.

Business Immigration Changes

A number of business immigration improvements are to be announced. For example,

1) Certain investors will be eligible for parole into the U.S. or for parole-in-place. Parole into the United States is for persons outside the United States so they do not need a nonimmigrant visa to enter. Parole-in-place allows persons who came in without visas to adjust status to permanent residence here. It is not clear yet if this refers to E-2 nonimmigrant investors or to EB-1 employment creation immigrants ($500,000 to $1,000,000 minimum).

2) National interest waivers to allow for employment-based residence without needing an approved labor certification first could be available for entrepreneurs, researchers, inventors, and founders. It is not clear yet if this will require them to prove that their employment here is in the “national interest,” as required now for certain employment-based immigrants or if the “national interest” would be served simply because you qualify under these categories without further proof.

3)The term “same or similar” for AC-21 purposes will be clarified. AC-21 was a law allowing employment-based immigrants to change jobs or places of employment once their adjustment applications had been filed for six months. AC-21 allows that as long as the new job is the “same or similar” job as the one defined in a labor certification application.

4) L-1B guidance will be released. L-1B’s are nonimmigrant visas for a foreign employee to come here to work as a “specialized worker” for a U.S. “affiliate” of the foreign company for a set amount of time to accomplish their “special task.” Current USCIS practice makes it very difficult to get an L-1B visa petition approved.

5) The H-4 employment authorization regulation will be finalized allowing qualifying spouses of H-1B workers to get employment authorization to be able to be employed here while they are married to the H-1B.

6) The length of time permitted on Optional Practical Training (“OPT”) for STEM (Science, Technology, Engineering, and Mathematics) graduates will be expanded from the current 18 months. Foreign students can get OPT after they complete university studies here. For non-STEM graduates, they can work here in their field for as long as one year after completing their studies.

7) The rulemaking process will be undertaken to modernize the PERM labor certification program and may include a harmless error provision. That provision would authorize or instruct the U.S. Department of Labor to approve labor certification applications where a “harmless error” was made in completing the application. An example that comes to my mind would be a clearly incorrect date that may or may not have a serious consequence.

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