Predictions for Business-Related Immigration Executive Action in 2014

As November 4, 2014 fast approaches, President Barack Obama remains committed to taking executive action on immigration following the mid-term elections should Congress fail to move forward with comprehensive immigration reform. The President announced on October 2 to the Congressional Hispanic Caucus Institute Gala that he will act on immigration before year’s end. On October 9, he reiterated this intent at a Town Hall on Innovation held in Los Angeles, stating “I will use all the executive authority that I legally have in order to make fixes in some of the system.  And that includes potentially making the H1B system that is often used by tech companies and some of the other elements of our legal immigration system more efficient, so we can encourage more folks to stay here.”

President Obama indicated that immigration reform is necessary because of the integral role immigrants have played in the economic recovery since 2008 and the pivotal role they will play for creating sustainable economic growth into the future. These remarks followed the President’s announcement that “last month, our businesses added 236,000 new jobs.  Over the past 55 months, we’ve added about 10.3 million new jobs across America.  And what we’ve seen is the longest uninterrupted stretch of private sector job growth in our history.  And that’s why, for the first time in more than six years, the unemployment rate has now dropped below 6 percent.  And today, we’re on pace for the strongest job growth since the 1990s.”

For this reason, President Obama equated further obstructionism by members of the Republican Party to thwart comprehensive immigration reform as political suicide. “The demographics of the country are such where you are going to lose an entire generation of immigrants,” according to the President, because they will start “looking around and saying, you know what, that party does not seem to care much about me and my life.  And I think the smarter Republicans understand this.”

Based on the above, it begs the question, what form of executive action will the President take? According to legal and political analysts, two provisions that would have the most immediate, positive effect on business are: 1) redefining how the federal government counts employment-based green cards and 2) recapturing unused employment-based visas. The first provision, stated in plain English, would increase the number of green cards available because only the primary beneficiary would be counted against the annual quota  as opposed to counting the beneficiary and all of his/her dependents against the quota. This alone could “effectively more than double the existing 336,000 green cards allotted each year and sharply reduce long wait times that green card applicants face,” according to International Business Times editor Brianna Lee . The second provision, however, would have an even more profound effect on U.S. businesses. Since 1992, an estimated 400,000 green cards went unused and would become immediately available.

According to attorneys Rahul Reddy and Emily Neumann, “these two provisions would translate into the possibility that priority dates may become current for all of EB2 and possibly even EB3.” The would have ripple-effect potential in business immigration because petitioner-companies could bypass the H-1B process entirely by filing the green card petition and adjustment of status application upon approval of the labor certification. Reddy and Neumann explain the potential result by way the following hypothetical: An F-1 student with 12 months of OPT plus 17 months of STEM extension could conceivably obtain a labor certification, file the I-140 and I-485, and obtain an EAD before the OPT period has ended.”


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