President Obama Announces Executive Action on Immigration

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On November 20, 2014, President Obama announced an executive action program on immigration that will likely impact businesses and families in the coming months. Key provisions of the program are summarized below.

Deferred Action

The President expanded and modified the Deferred Action for Child Arrivals (DACA) program. Under the new Deferred Action for Parental Accountability (DAPA) program, undocumented parents of children who are either United States citizens or lawful permanent residents as of November 20, 2014 may apply for work authorization for a three year period. To qualify, the parent must have been in the U.S. since January 1, 2010 and must pass a criminal background check and pay taxes.

The current DACA program will be expanded to allow undocumented persons who came to the United States before January 1, 2010 and before age sixteen to receive work authorization for a three year period. This expansion eliminates certain educational and age requirements under the current program.

The DACA program does not grant legal immigration status to participants, but allows them to remain in the U.S. to work. DACA participants are not eligible for Affordable Care Act (ACA) subsidies. Applications will be accepted under these programs in early 2015.

Adjustment of Status and Green Cards

Individuals with an approved employment-based immigrant petition (I-140) who cannot currently file an adjustment of status petition (I-485) due to green card backlogs may be permitted to file and obtain the benefits of an adjustment filing (travel and employment authorization). This change would significantly impact Chinese and Indian nationals who have been in the EB-2 green card backlog, as well as others experiencing processing delays in the EB-3 category. Employees may receive green cards more quickly and have greater flexibility in changing jobs or employers. United States Citizenship and Immigration Services (USCIS) will likely propose a final rule in 2015.

Business Immigration Changes

USCIS has been directed to modernize and improve the immigration system which could result in several changes. A final rule is expected to provide an H-4 dependent (spouse of H-1B beneficiary) with work authorization in connection with a green card application for the H-1B beneficiary. F-1 students in STEM fields may be eligible for extended post-graduate employment, and STEM degree fields may be expanded. USCIS will likely clarify who qualifies as a "specialized knowledge" intra-company transferee (L-1). New green card options may be available to promote research and development in the U.S. for researchers, inventors and founders as well as entrepreneurs and investors.

Worksite Enforcement

Immigration and Customs Enforcement (ICE) will work to improve interagency cooperation on worksite enforcement with the Department of Labor, Department of Justice, Office of Special Counsel, Equal Employment Opportunity Commission and National Labor Relations Board. Employers must remain diligent to ensure immigration compliance in the event of an audit.

For questions about the executive action immigration program, please contact McNair's immigration team at (843) 785-2171.

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