For individuals, the DHS has stated that they should begin accepting applications for “deferred action” within 90 days of November 20, 2014 for certain childhood arrivals and within 180 days of November 20, 2014 for certain parents. Importantly, deferred action does not confer any form of legal status but, if granted, does allow an individual to work and remain lawfully present in the United States for a three year period. The new policies include:
- Expanding Deferred Action for Childhood Arrivals (DACA) by removing the age cap so that individuals who are older than 31 can apply, extending validity periods for three years instead of two and changing the required date of initial entry from June 15, 2007 to January 1, 2010. The other guidelines, including entering the U.S. prior to age 16 and fulfilling certain U.S. education requirements, would remain in place.
- Expanding Deferred Action to include the parents of U.S. citizen or lawful permanent resident sons or daughters that have continuously resided in the United States since before January 1, 2010, were physically present in the United States on November 20, 2014, had no lawful immigration status on November 20, 2014, do not have certain convictions and are deserving of discretion.
For businesses, additional guidance should come, as stated in the DHS directive, “in a timely manner.” The directives include:
- Reforming “Optional Practical Training” for students to expand the degree programs eligible for OPT and extend the time period and use of OPT for foreign STEM students and graduates
- Bringing Greater Consistency to the L-1B Visa Program by issuing a policy memorandum that provides clear, consolidated guidance on the meaning of “specialized knowledge.”
- Increasing Worker Portability by issuing a policy memorandum that provides additional agency guidance, bringing needed clarity to employees and their employers with respect to the types of job changes that constitute a “same or similar” job under current law. This guidance should make clear that a worker can, for example, accept a promotion to a supervisory position or otherwise transition to related jobs within his or her field of endeavor.
- Extending work authorization to the spouses of H-1B visa holders who have been approved to receive lawful permanent residence. The memo states that “USCIS is about to publish the final rule” on H-4 employment authorization.