Obama’s Executive Actions on Immigration: An Update to Two Key Initiatives Designed to Enhance the Employment of Highly Skilled Foreign Workers

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In November 2014, President Obama issued a number of executive actions designed to make significant changes to the U.S. immigration system. The most controversial initiatives were the deferred action policies aimed at providing protection from deportation to an estimated 4.3 million unauthorized aliens, including those who had been in the United States for at least five years and had children who were citizens or lawful permanent residents.

So far, the Obama Administration’s efforts to implement these deferred action policies have been unsuccessful. Shortly after the President’s immigration plan was announced, a coalition of 26 states filed a lawsuit in federal district court in Texas seeking to enjoin the policies from going into effect, arguing that the President did not have the authority to issue those initiatives. The district court issued an injunction blocking the policies and, in November 2015, that injunction was upheld by the U.S. Court of Appeals for the Fifth Circuit. However, on January 19, 2016, the U.S. Supreme Court indicated that it intended to review the Fifth’s Circuit’s decision, breathing life into the possibility that the deferred actions initiatives might ultimately be put into effect after all. Until the Supreme Court issues a ruling – and that will likely take months – the fate of those policies remains in limbo.

When the President’s immigration plan was announced in November 2014, it also included a number of directives and policy revisions focused on enhancing the ability of U.S. companies to hire and retain highly skilled foreign employees. These pieces of the President’s plan did not draw nearly the same level of attention from the media or the general public, but they were received with keen interest by employers who rely on foreign workers to meet their labor needs. In the 14 months since, a number of these specific initiatives have been rolled out, although the impact they ultimately will have is still a bit of a question mark.

Two of the key initiatives, along with an update of where they now stand, are summarized below:

Reforming the “Optional Practical Training” Program for Foreign Students and Graduates of U.S. Universities

Foreign students who graduate from U.S. colleges and universities may stay in the U.S. and work temporarily, for a period of optional practical training (OPT), in an area related to the student’s degree. Many U.S. employers hire these graduates with the idea that, during the OPT period, they will sponsor the graduate for a nonimmigrant H-1B “specialty occupation” visa so that he or she can continue working in the U.S. in H-1B status.

Prior to 2008, a foreign student could work in OPT status for no more than 12 months, and this OPT employment had to be finished within 14 months of the student’s graduation. This relatively short period – combined with the limited availability of H-1B visas and the timing of when those visas must be applied for – meant that employers often did not have sufficient time to get these U.S. educated students moved into H-1B status so they could continue to work in the U.S.

In 2008, the Department of Homeland Security (DHS) issued a regulation that gave certain foreign students the opportunity to stay and work in the U.S for a longer time after completing their degree and made other changes to facilitate a student’s transition into H-1B employment. Among other things, this regulation provided for a one-time 17-month extension of the OPT period for students with degrees in the fields of science, technology, engineering, and mathematics (STEM).

The executive actions announced by President Obama in November 2014 included a directive that DHS propose additional regulatory changes to expand and extend the OPT program. However, before DHS was able to issue the new OPT regulation, the Washington Alliance of Technology Workers (WashTech), a collective bargaining group representing American STEM employees, filed a lawsuit in federal district court in Washington, D.C., challenging DHS’s 2008 OPT rule.

In August 2015, the district court issued a lengthy opinion upholding DHS’s authority to issue the 2008 OPT regulation, but ruling that that regulation was invalid because DHS had issued it without complying with the public notice and comment requirements of Administrative Procedure Act (APA). The district court then vacated the 2008 rule, but ordered that its vacatur be stayed until February 12, 2016, so as to give DHS sufficient time to publish a new OPT regulation with proper notice and opportunity for public comment. The court’s stay was critical because it has allowed DHS to continue to process STEM applications so that thousands of graduates have been able to continue working in the United States.

Facing a new sense of urgency because of the district court’s ruling in WashTech, on October 19, 2015, DHS published a new OPT regulation in accordance with President Obama’s November 2014 executive actions. Among other things, this new proposed rule expands the OPT period for STEM graduates to an additional 24 months so that those students are entitled to up to a total of 36 months of OPT. The new regulation also attempts to clarify the educational degree programs that are classified as STEM and requires employers of STEM graduates in OPT to implement formal mentoring and training programs.

Since the proposed OPT regulation was published, DHS has received over 50,000 public comments. In December 2015, after it became clear that that regulation could not be issued in final form by February 12, 2016, when the stay in the WashTech case was set to expire, DHS asked the district court for an extension of the stay so that its processing of STEM applications would not be interrupted. On January 23, 2016, the court granted an extension through May 10, 2016, meaning that DHS will be able to continue processing STEM applications at least until that date.

In the meantime, WashTech has appealed the district court’s ruling to the U.S. Court of Appeals for the D.C. Circuit, arguing that DHS did not have the authority to issue the 2008 OPT regulation. If the appeals court buys WashTech’s argument, there may be no way for DHS to save the STEM extension without Congressional assistance. And, given the partisan discord surrounding the issue of immigration, it is difficult to imagine Congress stepping in to help.

Extending Work Authorization to the Spouses of Certain H-1B Employees

Employers who wish to retain H-1B employees and other nonimmigrant workers on a more permanent basis may sponsor those workers for an employment-based green card. However, because of the statutory limits on the number of immigrant visas available, this green card process can take several years to complete. H-1B employees typically must leave the U.S. after six years unless they can either obtain a green card or get their H-1B status extended based on having reached certain milestones in the green card process.

Dependent spouses of H-1B employees can obtain an H-4 visa that allows them to live in the U.S. However, until recently, H-4 spouses were not authorized to work in the U.S. under any circumstances.

In May 2014, DHS issued a proposed regulation to allow the H-4 spouses of certain H-1B employees to obtain work authorization. Specifically, that regulation gave H-4 spouses the right to apply for a work permit if the H-1B employee was going through the green card process and either (1) was the beneficiary of an approved employment-based immigrant visa petition, or (2) had received an H-1B extension on the basis that his or her immigrant visa petition or labor certification (PERM) application had been pending for at least 365 days.

When the immigration executive actions were announced in November 2014, the Obama Administration reiterated its commitment to the idea of H-4 spousal employment and indicated that this proposed regulation would be finalized soon. On February 24, 2015, DHS issued its final regulation, which allowed eligible H-4 spouses to begin applying for work permits on May 26, 2015. Since that time, DHS has granted work authorization to tens of thousands of qualifying H-4 visa holders.

However, the ultimate fate of this regulation is uncertain. Shortly after the final regulation was issued, Save Jobs USA, a group of computer workers, filed suit in the federal court, arguing that there was no statutory authorization for DHS to grant work permits to H-4 visa holders. Both sides have now filed motions for summary judgment, with a ruling expected sometime this year. Although it is certainly possible that this regulation will ultimately be struck down, it does not suffer from the same flaw that led to the court’s vacatur of the 2008 OPT rule. Unlike that rule, the H-4 spousal employment regulation did go through the public notice and comment process required by the APA.