On Thursday, November 20, 2014, Jeh Charles Johnson, Secretary for the U.S. Department of Homeland Security, announced sweeping changes in the immigration system affecting both documented and undocumented foreign nationals in the United States. The changes hold great promise for employers in attracting promising job candidates and retaining highly-valued employees.
Johnson's announcement included demands for a more efficient system of issuing immigrant visas, which is a necessary step to obtaining permanent residence (also known as a "green card"). Johnson also called for more clarity in rules allowing eligible employees awaiting permanent residence to shift to a "same or similar" job.
Other changes include:
- Work authorization for spouses of H-1B employees
- More time for college graduates seeking Optional Practical Training with an expanded number of eligible degrees
- Clearer rules for individuals who may qualify for a national interest waiver or who are deemed to provide a significant public benefit
- Clearer rules for intracompany transferees with specialized knowledge
In addition, a new deferred action program for individuals who have a U.S. citizen child, but are not themselves authorized to work in the United States, could also benefit employers. The Deferred Action for Parental Accountability program is anticipated to grant work authorization for up to 5 million people currently in the United States. Deferred action does not grant lawful status to these workers, but it does grant work authorization for up to three years and removes the threat of deportation.
To qualify, these workers must:
- Have a U.S. citizen son or daughter as of November 20, 2014
- Be able to document that they have continuously resided in the United States since before January 1, 2010
- Demonstrate physical presence in the United States on November 20, 2014
- Have no lawful status as of November 20, 2014
- Not be an enforcement priority
- Be deemed worthy of deferred action by an immigration officer
Applicants must submit the appropriate forms, along with a $465 application fee, and provide fingerprints as part of a background check. The Department of Homeland Security is expected to begin accepting applications no later than six months from now.
In 2012, a more limited program known as Deferred Action for Childhood Arrivals (DACA) was made available to certain undocumented residents. The undocumented residents were granted the opportunity to renew their applications for DACA for a period of two years. The newly announced Deferred Action for Parental Accountability program is approved for a period of three years, although it is unclear whether this program will be renewed.
The aforementioned 2012 DACA program also has been expanded. As before, candidates must have entered the U.S. before age 16. Previously, this program excluded anyone more than 31 years old. That age restriction has been removed, and employment authorization has been expanded to three years. The Department of Homeland Security is expected to begin accepting applications for the expanded DACA program no later than 90 days from now.
Applications are not yet available for these newly announced programs. Employers should be wary of agencies or people promising to assist with applications at this time. The Department of Homeland Security is expected to produce detailed explanations, instructions, regulations and forms over the next few months.