Few Timelines Yet Available for President’s Executive Actions

Immediately following President Obama’s November 20, 2014 announcement of his executive actions related to immigration reform, the Murthy Law Firm began to receive queries asking when the changes would go into effect. While the timeline on immigration benefits for undocumented aliens has been fairly well publicized, those looking for timeframes on the employment-based (EB) immigration changes are still seeking answers. As of the time of this writing, much of the timeline remains extremely vague; but, based on the best available information, it is possible to make some predictions.

Executive Actions Need Guidance Memos or Regulations

President Obama has issued a package of executive actions, known as the Immigration Accountability Executive Actions. The actions have a broad reach, involving the U.S. Department of Homeland Security (DHS), the U.S. Department of Labor (DOL), and the U.S. Department of State. The EB immigration reforms contained in the President’s plan can only be implemented after the appropriate agency takes the necessary steps. Many of these changes require issuance of either guidance memoranda or regulations. This is why there have not been any immediate changes or clear timelines.

H-4 Employment Authorization Expected by Jan 2015

The regulation that will allow for issuance of employment authorization documents (EADs) to qualified H-4 spouses is expected to be published as a final regulation by January 2015. This is the clearest timeframe estimate applicable to the EB changes. The main reason this particular rule change can be implemented so quickly is because the rulemaking process was initiated months before the President’s announcement.

F-1 OPT Improvements Expected by Jun 2015

The Secretary of the Department of Homeland Security (DHS) has directed the U. S. Citizenship and Immigration Services (USCIS) and U.S. Immigration and Customs Enforcement (ICE) to augment the duration and eligibility for the extended STEM optional practical training (OPT) period for F-1 students. Such changes require issuance of regulations, making this timeframe uncertain. However, there is a proposed rule change in process, noted in the Office of Management and Budget (OMB) regulatory agenda, which reflects a proposed change to the STEM OPT requirements. This has an expected date of publication as a Notice of Proposed Rule in June 2015.

EB Immigrant Visa System Improvements: No Timeframe

One series of directives that has generated a great deal of excitement, yet uncertainty, relates to the EB immigrant visa system and the visa bulletin. The most significant of these improvements is the expectation that it may become possible to file an adjustment of status application (I-485 form), at a point prior to the availability of a corresponding visa number. This would be an enormous change for those in backlogged, EB, immigrant visa categories. This change will first require regulatory action. Therefore, there is currently no timetable estimate.

This ambiguity creates a dilemma for those who may be considering a change in employment, but have been unable to file the I-485 due to visa number limitations. There is a fear of missing out on potential new job opportunities while waiting for changes in the green card procedures. But, there is also a fear that the rules will change shortly after leaving the current employer, and that it would have been better to wait for the opportunity to file the I-485. There is no clear right or wrong answer to these decisions at this time. What is clear is that any changes related to I-485 filings will not be immediate, due to the need for new regulations to be issued in order to modify the current system.

Entrepreneurs, Researchers, and Inventors: No Timeframe

The key changes to the national interest waiver (NIW) category aimed at enhancing opportunities for inventors, researchers, and entrepreneurs will require either regulations or a policy memorandum. As of yet, there is no timeframe projection for these proposed enhancements to the NIW program.

PERM Enhancements: No Timeframe

The President’s directive to the U.S. Department of Labor (DOL) to modernize the PERM labor certification process is discussed in the MurthyDotCom NewsBrief, President’s Executive Action Mandates Improvements to PERM (25.Nov.2014). These changes will require either regulatory changes or issuance of policy guidance. The DOL will start this process by soliciting input from the public, but the DOL has not yet provided an estimate as to when even this initial step will be taken.

Conclusion

As should be clear, the changes hoped for by many stakeholders are going to take time to materialize. This will undoubtedly prove frustrating for foreign nationals who have already been waiting years for various critical changes to the EB immigration system. Yet, it is at least encouraging to know that such changes are in the works. As always, MurthyDotCom will continue to closely track these developments and post updates as soon as new information becomes available. Subscribe to the free MurthyBulletin to stay informed.

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