Government, Human Resources, and Law

Immigration changes help

Employment-based rules could alleviate massive backlogs.

December 5, 2014
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Some businesses stand to gain from President Barack Obama’s executive order on immigration.

“What he has done, in essence, is directed the various immigration agencies, like United States Citizen and Immigration Services, (which is) under the Department of Homeland Security, to issue memos and create rules or propose regulations that will support and improve business immigration on a lot of different levels,” said Susan Im, of Im Law.

Im, an immigration attorney, has heard from several of her clients in the past few weeks looking to take advantage of Obama’s executive order. She said directives focused on employment-based immigration could help a lot of professionals currently working through the immigration system and stuck in the massive backlog.

“There are five different routes through which a foreign national can obtain green card status through their employment, and those are known as employment-based, first-through-five categories,” Im said.

The wait list for some foreign nationals can be nearly a decade long, particularly for workers from India and China.

“Depending on which employment-based category you fall into and your country of birth, you may be waiting multiple years,” Im said. “Their spouses and children (are) often stuck in the process, not being able to work. It really does hold up their lives.”

Nathaniel Wolf, an attorney with Mika Meyers Beckett & Jones, said there are an estimated 400,000 people in limbo.

“They keep extending their non-immigrant visa, or temporary visa, like H1Bs, waiting for the day their visa number might come up and they can actually adjust and become permanent residents.”

Previously, foreign nationals have been prohibited from filing an adjustment of status I-485 unless an employment-based green card was available in the particular category and country of birth.

Based on the executive order, foreign nationals who have reached a specific point in the green card process will be able to file the adjustment of status I-485 form without that restriction.

“Those folks that have an approved I-140 are able to file the I-485 adjustment of status without having to wait for a green card number becoming available for their employment-based category or country of birth,” Im said. “This allows their spouses and dependent children to apply for the benefits of employment and travel authorization.”

Under the executive order, there is also a directive to expand opportunities for attracting researchers and innovators to the United States.

Im said under the current Immigration and Nationality Act, certain foreign nationals can be paroled into the United States if they provide “a significant public benefit.”

Under the executive order, the USCIS has been tasked with proposing a program that would allow parole status on a case-by-case basis to certain inventors, researchers and founders of start-up enterprises who may not yet qualify for a national interest waiver route.

Employers looking to hire students from other countries in the STEM fields could also benefit from changes to the optional practical training program.

“That is often available to students who get a degree in a certain field and then they can extend their time in the United States after their graduation to get some practical training before having to apply for a visa, H1B or a green card,” Wolf said.

Currently, students in the country under the OPT program are able to work for 12 months following graduation, with some of them meeting requirements for a 17-month extension.

“One of the directives the Department of Homeland Security Secretary (Jeh) Johnson has put out there is to extend the length of time a STEM OPT can work beyond the 12-month initial period and 17-month extension,” Im said.

According to the Department of Homeland Security website, “USCIS and other agencies and offices are responsible for implementing these initiatives as soon as possible. Some initiatives will be implemented over the next several months and some will take longer. Over the coming months, USCIS will produce detailed explanations, instructions, regulations and forms as necessary.

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