Executive Action on Immigration

President Barack Obama has announced he will take executive action to expand the population of currently undocumented individuals who will be allowed to remain and work legally in the U.S. The President also announced expansions of employment-based legal immigration. Many details remain to be clarified, but employers should be aware of the following key developments and initiatives:

• Expansion of Deferred Action for Childhood Arrivals (DACA)

• Creation of Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)

The President also announced a number of new efforts to make the current employment-based system more responsive to the needs of employers, including:

• Employment Authorization for H-1B Dependents

• Expansion of Optional Practical Training (OPT) for Foreign Students and Graduates from U.S. Universities

• Bringing Greater Consistency to the L-1B Visa Program

• Increasing Worker Portability

We will provide more information as it becomes available.

USCIS to Dispose Certain E-Verify Records Beginning January 1, 2015

U.S. Citizenship and Immigration Services has announced that as of January 1, 2015, in accordance with the National Archives and Records Administration records retention and disposal schedule, it will begin disposing of E-Verify records permanently that are more than 10 years old, including all activity recorded in an employer’s E-Verify profile. Employers that have been participating in the program since December 31, 2004, should take measures to archive their data.

Court Ruling Could Broaden Range of Professionals Eligible for L Visas

A federal appeals court in Washington, D.C., has rejected USCIS’s determination that “inherent knowledge a person gains as a result of his or her upbringing, family and community traditions, and overall assimilation to one’s native culture necessarily falls into the realm of general knowledge” and, therefore, cannot not be considered “specialized knowledge” as required for L-1B, intra-company transfer visa. The case involved a Brazilian gaucho chef or churrasqueiro. In its October 21, 2014, decision the Court reversed the lower court’s grant of summary judgment for the government and remanded the case for further proceedings. Fogo De Chao (Holdings) Inc. v. U.S. Department of Homeland Security, No. 13-5301 (D.C. Cir. Oct. 21, 2014). 

H-1B Cap Season Approaching

Due to high demand for H-1B visas, businesses must be ready to file their completed H-1B petitions on April 1, 2015. The Immigration and Nationality Act (INA) allocates 65,000 new H-1B visas each fiscal year, running October 1 – September 30, and 20,000 more H-1Bs are reserved for individuals who received a master’s or higher degree from a U.S. educational institution. Because a petition cannot be filed more than six months prior to the employee’s start date, the earliest possible date to file for a new H-1B is April 1. Historically, the cap has been met in the first week.