On November 20, 2014, President Obama released the long-anticipated “Executive Action” on immigration reform. See here, here and here. We will also post additional materials made available. Late last summer, the President had postponed the release of such action until after the mid-term elections. Despite the cries of overreaching and lack of authority by the Republican leadership in the House and the Senate, the President has now released a plan to begin immediately the process of implementing some new policies through published guidance and to begin implementation of other policies through proposed regulatory changes. Some opposed to these actions have vowed to block the implementation through judicial intervention, attempts to defund the programs and potentially through other political means.
We will monitor the status of each change and post updates as they become available.
The following is a brief summary of the Executive proposed actions that will impact business. We have divided them broadly into three categories: 1) Changes done through guidance; 2) Changes that will need regulatory action; and 3) Changes that are still being discussed through a “Presidential Memorandum” process.
Administration Guidance without New Regulation
- Expansion of Deferred Action. Provide deferred action with employment authorization and advance parole, to include:
- Parents of U.S. citizens and Permanent Residents. (Must have lived in the U.S. for 5 years and must have entered by January 1, 2010.)
- Expansion of current Deferred Action Program to include Individuals who have resided in the U.S. for 5 years or more. There will no longer be an age limit.
- Parole in Place. Expand PIP eligibility and confirm that Matter of Arrabally & Yerrabelly applies to all who depart and return on advance parole.
- National interest waivers available for those in positions to create jobs, and those fulfilling shortage occupations.
- Exemption from the H-1B cap. Interpret the term “affiliated or related nonprofit entity” to an institution of higher education for H-1B cap-exemption purposes under INA §214(g)(5)(A) more flexibly.
Regulatory Changes through the Administration Procedure Act/Federal Register
- Enable entrepreneurs to be paroled into the U.S. and work if they are researchers, inventors or founders of businesses.
- Expand availability of optional practical training for graduating F-1s:
- Make the additional time available for STEM OPT graduates and expand the definition of STEM.
- Early Adjustment. Enable individuals who are eligible to apply for adjustment of status, but for a non-current priority date, to file for adjustment and receive work authorization and advance parole.
- Work authorization for spouses of H-1Bs. Finalize pending regulation.
- Improve the L-1 adjudicative process:
- Release of guidance on L-1Bs.
Presidential Memorandum on Visa Modernization – Further Discussion
- Recapturing permanent resident numbers based on numbers allocated by Congress but left unused. When the government is unable to issue the allocated immigrant visa numbers for preference immigrants in a particular fiscal year, despite sufficient demand for such immigrant visa numbers, then the Department of State will ensure those unused immigrant visa numbers are used in subsequent years, in order to better effect Congressional objectives.
- Derivative spouses and children not counted toward preference quotas.
- Other important issues related to help revise the visa process for businesses.
Compliance Concerns with the extension of Deferred Action
Extensions of temporary relief for workers already in the U.S. could make their status more confusing to employers and put business owners in an untenable position with regard to employment eligibility verification compliance. Employers are particularly vulnerable when a current employee comes forward and reveals that s/he has been working for the company under a false identity and asks the employer to provide evidence of his/her employment history in order to take advantage of Executive Relief. An employer faces civil and potentially criminal liability for past hiring of unauthorized workers and also may face discrimination charges for hiring newly documented workers who previously presented fraudulent documents. Additionally, employers who do provide documentation to unauthorized workers may be identified as a target for future government enforcement activity.
Legislation to permanently address many of the items identified in the President’s executive action is still very much needed. We will continue to monitor and bring our readers updates as these initiatives, and reactions to them, unfold.
Please join Greenberg Traurig’s Business Immigration & Compliance practice for a webinar entitled Executive Action on Immigration Reform: Now What? Due to the nature of this development, GT will offer two opportunities to participate in this webinar.
- Friday, November 21st | 1:00 – 2:30pm ET
- Monday, November 24th | 1:00 – 2:30pm ET
- What Executive Action means to the business community
- Extension of Deferred Action and its impact on employer compliance
- What else is new for the business community?
- What does this mean for immigration legislation?
- Is this action permanent? Can it be repealed?
On The Blog:
For previous and current coverage on Immigration Reform, Executive Action and more, please visit the Immigration Policy section of Inside Business Immigration blog here.
To register for the Friday, November 21st webinar, please click here.
To register for the Monday, November 24th webinar, please click here.
Questions? Please contact August Trammell at email@example.com
Last week, Greenberg Traurig EB-5 attorney Ali Brodie presented to students at Columbia University in New York on the topic of “Post-Graduate Immigration Options with a Focus on the USCIS EB-5 Visa Program.” EB-5 team members Sylvia Sobczyk and Joanna Jiang also attended the seminar. The lecture attracted a number of foreign students interested in learning about the various non-immigrant visa and immigrant visa options – with a focus on the EB-5 Immigrant Investor Program – allowing them to remain in the United States post-graduation.
Program highlights included a discussion on options for transitioning from the F-1 visa to other non-immigrant work authorized visas including the H-1B, O-1, E-2 and L-1 visas. Additionally, Ali discussed the various employment-based immigrant visa categories including EB-1, EB-2, EB-3 and EB-5. Attendees learned about the various non-immigrant and immigrant visa categories from the student perspective.
The National Visa Center (NVC), in operation now for 20 years, is the U.S. Department of State agency responsible for pre-processing approved immigrant visas that include immigration based on: family and employment sponsorship, diversity visas and special immigrant visas. This month, the NVC met with the American Immigrant Lawyer’s Association and provided insight into its increased processing times, announced Fiscal Year statistics, and reported expected changes in 2015.
The NVC noted that during this year it started to receive 25,000 immigrant cases per week as opposed to roughly 8,000 cases as a result of USCIS working through its I-130, Immigrant Petition for Alien Relative application backlog. Due to this increase in volume, timing for case creation and document review increased, which is being addressed through staff adjustments. The NVC provided statistics for Fiscal Year 2014 including: it received 709,000 cases from USCIS, shipped 349,000 cases to various Consular Posts worldwide, and received 1.6 million calls. With respect to future changes, the NVC reported that early in 2015 it will start handling telephone inquiries regarding non-immigrant visa cases.
In light of this upcoming change, its telephone system will be updated to accommodate the increase in calls by next February. Another update in 2015 involves the NVC’s change from paper-based applications to electronic processing, a process that has been tested by select consular posts since 2008. Software to enable this is being developed for full roll-out sometime late next year. Other topics addressed included: visa retrogression, aging-out children, best contact information for the NVC, and immigrant visa applications that are erroneously terminated by the NVC when the applicant does not make contact on a case within 1 year of being notified of visa availability.
*Not admitted to the practice of law.
The National Visa Center (NVC), the U.S. Department of State agency responsible for pre-processing approved immigrant visas, has changed its policy on collecting originals of certain supporting documents. As of Nov. 12, 2014, NVC will no longer collect original civil documents (such as birth, marriage, police, military, court, death or divorce records) for immigrant visa applications at non-electronic processing posts. Instead, applicants should only submit photocopies of these documents to NVC via mail and keep the original documents in their possession. However, applicants will need to take the original documents to the visa interview, once scheduled.
With this new policy to stop collecting certain originals, NVC hopes to reduce wait times and improve the visa processing experience overall for customers. Instead of having to send originals of such sensitive, important documents, applicants can now just provide photocopies at the initial document submission stage. NVC will include the photocopies as part of the file for the appropriate Consular post, hopefully leading to more cases being documentarily qualified faster.
The Department of State (DOS) announced more changes to its Reciprocity Table following updates from earlier this month and in September. Specifically, beginning November 12, 2014, Chinese nationals and their dependents will be eligible for longer visa validity periods for the following U.S. visas:
- B-1/B-2 (business and tourism) visas will increase from a one-year validity period to ten years (valid for multiple entries)
- F-1 (students), J-1 (trainees) and M-1 (vocational) visas will increase from a one-year validity period to five years (valid for multiple entries)
We are pleased to announce that the Business Immigration & Compliance Practice of international law firm Greenberg Traurig, LLP earned a first-tier ranking from the U.S. News-Best Lawyers 2015 Best Law Firm rankings nationwide, as well as the Washington, D.C. and Miami metropolitan areas. The Immigration Practice has consistently been ranked in the first-tier for the past five years.
According to the publication, achieving a high ranking is a special distinction that signals a unique combination of excellence and breadth of experience.
Ali Brodie is pictured speaking about using the EB-5 program as a tool for franchise network expansion.
Last week, Greenberg Traurig EB-5 attorney Ali Brodie and Franchise attorney David Oppenheimspoke at the West Coast Franchise Expo in Anaheim, Calif.
Ali provided a seminar on EB-5 as a tool for franchise network expansion. She discussed how the EB-5 program affords unique opportunities for franchise companies to raise capital and expand their franchise networks by working with EB-5 investors.
David provided a seminar on structuring for franchise network expansion. He explored common expansion models used for both domestic and international growth, with a discussion on the legal considerations for choosing one structure over another.
The Chief of the Visa Control and Reporting Division of the U.S. Department of State, Charles Oppenheim, reported that the EB-5 immigrant visa category would likely retrogress in July 2015. However, this does contradict his prediction provided to AILA earlier last week of retrogression occurring in May 2015. What is striking about Oppenheim’s announcement was that retrogression of the EB-5 immigrant visa category would cause him to establish a cut-off date of July 2013. A cut-off date has the effect of establishing an orderly line for the issuance of EB-5 immigrant visas. The cut-off date is determined based on the date an I-526 Petition was filed and is the date included on each I-526 Petition approval notice in the “Priority Date” box. For example, if a cut-off date of July 2013 is established in July 2015, during the month of July 2015, only those EB-5 investors (and their derivative beneficiaries) with a Priority Date in July 2013 or earlier (i.e. June 2013, May 2013, etc.) may apply for an EB-5 immigrant visa.
As part of an ongoing series of monthly updates provided to the American Immigration Lawyers Association, the chief of the Visa Control and Reporting Division of the U.S. Department of State, Charles Oppenheim, reported that the EB-5 immigrant visa category could retrogress as early as May 2015. It appears retrogression of the EB-5 immigrant visa category will happen during the U.S. government’s 2014-2015 fiscal year, the only questions are when such retrogression will occur and what impact it will have. This is consistent with our prior information.
As we have stated previously, EB-5 investors should continue to file I-526 Petitions in the regular course of business because retrogression will have no effect on the adjudication of I-526 Petitions by the U.S. Citizenship & Immigration Services. Furthermore, if the EB-5 immigrant visa category retrogresses for mainland-Chinese born EB-5 investors, the State Department will create a waiting list based on the date an I-526 Petition was filed. Accordingly, EB-5 investors who have filed their I-526 Petitions prior to other EB-5 investors will be closer to the front of the EB-5 immigrant visa line.