Immigration
President Obama’s Executive Action on Immigration Law Enforcement: What Does It Mean? part ii
Relief for Employees Awaiting Green Cards and Modernizing the Employment-Based Visa System: Each year, thousands of visas go unused because the allocation system is not precise. These unused visas could be recaptured so that those waiting for their green cards can get them more quickly. DHS Secretary Jeh Johnson has directed USCIS to undertake several steps to modernize the employment-based visa system, including exploring with the Department of State optimal use of the annual visa allocations. Another measure is to permit individuals with an approved I-140 employment-based petition and caught in the lengthy visa backlog to pre-register for adjustment of status and obtain the benefits of pending adjustment. Such benefits would include obtaining EADs and travel permits. It is presumed that this would include the employee-principal applicants as well as their family-member dependents. These changes could provide tremendous flexibility for employers and their foreign national personnel. Moreover, USCIS has been instructed to clarify the types of job changes (“same or similar”) that do not require new PERM applications, and to make it clear that promotions to supervisory positions and transitions to related jobs in the field of endeavor are permissible. The change is expected to affect about 410,000 people.
No time frame has been provided for when these changes would be implemented.
Promoting Research, Development, and Entrepreneurship: Certain foreign “inventors, researchers, and founders of start up enterprises” will be afforded new immigration options, through the clarification by USCIS that the National Interest Waiver employment-based immigrant visa category is appropriate for some and granting parole status for others.
These changes will be implemented by policy memo and regulation, but no time frame has been provided.
L-1B Specialized Knowledge Intracompany Transferees: USCIS has been instructed to issue a long-awaited policy memorandum that will “provide clear, consolidated guidance on the meaning of specialized knowledge.” It is expected that a more lenient and consistent interpretation of the law will be implemented, which will provide more certainty for companies and reduce denials.
Southern Border and Approaches Campaign: DHS has commissioned three new task forces, with personnel realignments to improve border security. The announcement specifically states that the objectives should not impede travel, lawful trade, and commerce.
“Secure Communities”: The controversial deportation program, also referred to as 289(g), is discontinued. The program relied on integrated databases and partnerships with local and state jailers to build domestic deportation capacity and required local law enforcement to detain individuals for ICE custody. Many state and local partners as well as rights advocates and others came to resent the program because of its detrimental effect on local law-enforcement operations, and because it became a general deportation facilitation tool rather than a tool for deporting criminals.
Immediately after President Obama’s executive action was issued, the legality of his authority and actions was raised. While many legal scholars, including some 130 law professors and former general counsel of the immigration service, have stated that the President’s actions are within the legal authority of the government’s executive branch and are consistent with similar actions taken by other presidents, a lawsuit was filed by 17 states in U.S. district court seeking declaratory and injunctive relief. The suit alleges that the Administration’s immigration executive actions violate the “Take Care Clause” of U.S. Constitution (Art. II, Sec. 3, Cl. 5) and Administrative Procedure Act (APA). It remains to seen what the court will do.
In any event, none of these programs has been implemented, and it may be months before the publication of any policy guidance or formal regulations that give these action effect. Moreover, President Obama’s actions do not provide permanent relief or status to anyone, and Congress can enact legislation to supersede any and all of these reform measures.
For months to come, the agencies will provide explanations, instructions, forms, and more detailed procedures as necessary, and we will provide those details as we learn of them. In the meantime, our experienced attorneys are available to answer questions and determine how you may benefit.
PERM Business Necessity: DOL Offers Guidance on Burden to Prove
Recently, the Office of Foreign Labor Certification (OFLC) has been issuing a number of audit requests for PERM applications that require proving the business necessity of job duties or requirements. Fortunately, the OFLC has released a directive to help clarify what kinds of documents can help meet the standard of review. There are generally two issues that should be addressed to show the business necessity of a listed job duty or requirement: that it is a normal requirement in the industry, and that it is essential to the position. Common documents used to show business necessity include: employer or expert statements describing how the duty or skill relates to the business and showing that it is a typical requirement in the industry. Additionally, résumés from current or past employees in the position can show the employer has required this in the past, and that past employees have met the requirements. Moreover, evidence from other employers in the industry — such as job advertisements or résumés from people in the same position — can help show that they also require the minimum duties or skills requested. Business plans or contracts can demonstrate that the job duty or requirement is essential to the business. Finally, a statement from an employer explaining the negative impacts on the business can help convince an analyst of the necessity of the requirements.
