Stay tuned to this page for updates on the status of initiatives stemming from the immigration-related executive actions.

On November 20, 2014, President Obama announced a series of executive actions to address critical immigration system needs while Congress continues to debate longer-term legislative measures. Here are the highlights. The measures that more directly impact higher education are in bold. Related sources and resources are in the side-bar on the right side of this page.

Most measures are not yet in effect, and the details of each initiative have not been completely formulated. Each measure will go through specific implementation procedures, some of which will require new regulations to be proposed and finalized before any change can take effect. Items described on this page will be updated when related steps are taken.

 

Summary of Immigration Executive Actions

Strengthening and extending on-the-job training for STEM graduates of U.S universities. "In order to strengthen educational experiences of foreign students studying science, technology, engineering, and mathematics (STEM) at U.S. universities, DHS will propose changes to expand and extend the use of the existing Optional Practical Training (OPT) program and require stronger ties between OPT students and their colleges and universities following graduation." USCIS says that it will "work with Immigration and Customs Enforcement (ICE) to develop regulations for notice and comment to expand and extend the use of optional practical training (OPT) for foreign students, consistent with existing law." On October 2, 2015, DHS submitted a new proposed STEM OPT rule for OMB review (Office of Management and Budget). After OMB approval, DHS can publish the proposed rule in the Federal Register and open the proposal for public comment, at which time details of the proposal will be known. After public comment is received and analyzed, DHS will then have to publish a final rule in the Federal Register for the rule to become effective.

Presidential Memorandum on visa modernization. On November 21, 2014, the President issued a Memorandum directing an interagency group to consult internally and with relevant private and nonfederal public stakeholders (such as business people, labor leaders, universities, and legal and technology experts) and recommend ways to:

  1. "streamline and improve the legal immigration system -- including immigrant and non-immigrant visa processing -- with a focus on reforms that reduce Government costs, improve services for applicants, reduce burdens on employers, and combat waste, fraud, and abuse in the system;"
  2. "ensure that administrative policies, practices, and systems use all of the immigrant visa numbers that the Congress provides for and intends to be issued, consistent with demand; and"
  3. "modernize the information technology infrastructure underlying the visa processing system, with a goal of reducing redundant systems, improving the experience of applicants, and enabling better public and congressional oversight of the system."
  • On December 30, 2014, the Departments of State and Homeland Security opened a 30-day comment period for the public to submit ideas on how to modernize and streamline the U.S. immigration system. Comments were due by January 29, 2015. Read NAFSA's January 29, 2015 comment letter.
  • On July 15, 2015, the White House released a report and fact sheet on "Modernizing and Streamlining Our Legal Immigration System for the 21st Century." The report presents a range of new actions that federal agencies plan to undertake "to improve the visa experience for families, workers, employers, and people in need of humanitarian relief." 

Providing portable work authorization for high-skilled workers awaiting LPR status and their spouses. "Under the current system, employees with approved lawful permanent residence (LPR) applications often wait many years for their visa to become available." Under the executive action:

  1. "DHS will make regulatory changes to allow these workers to move or change jobs more easily."USCIS states that it will "Provide clarity on adjustment portability to remove unnecessary restrictions on natural career progression and general job mobility to provide relief to workers facing lengthy adjustment delays."
  2. "DHS will also finalize new rules to give certain H-1B spouses employment authorization as long as the H-1B spouse has an approved LPR application."
    • USCIS had already published a proposed rule on May 12, 2014 to implement this limited H-4 employment authorization. NAFSA commented on the proposal on July 1, 2014.
    • Under a final rule effective May 26, 2015 [80 Fed.Reg. 10283 (February 25, 2015)], H-4 dependent spouses of certain H-1B nonimmigrants who are seeking employment-based lawful permanent resident (LPR) status may apply to USCIS for an Employment Authorization Document (EAD). Not all H-4 spouses are eligible. See NAFSA's H-4 employment page for more details.
     

Enhancing options for foreign entrepreneurs. "DHS will expand immigration options for foreign entrepreneurs who meet certain criteria for creating jobs, attracting investment, and generating revenue in the U.S., to ensure that our system encourages them to grow our economy. The criteria will include income thresholds so that these individuals are not eligible for certain public benefits like welfare or tax credits under the Affordable Care Act." USCIS states that it will:

  1. "Authorize parole, on a case-by-case basis, to eligible inventors, researchers and founders of start-up enterprises who may not yet qualify for a national interest waiver, but who: Have been awarded substantial U.S. investor financing; or Otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research."
  2. "Clarify the standard by which a national interest waiver may be granted to foreign inventors, researchers and founders of start-up enterprises to benefit the U.S economy."

Streamlining the process for foreign workers and their employers, while protecting American workers.

  1. "DHS will clarify its guidance on temporary L-1 visas for foreign workers who transfer from a company’s foreign office to its U.S. office." USCIS states that it will "provide clear, consolidated guidance on the meaning of “specialized knowledge” to bring greater clarity and integrity to the L-1B program, improve consistency in adjudications, and enhance companies’ confidence in the program."
  2. "DOL will take regulatory action to modernize the labor market test that is required of employers that sponsor foreign workers for immigrant visas while ensuring that American workers are protected."
    • On Thursday, January 22, 2015, the Department of Labor (DOL) hosted a stakeholder listening session regarding the Permanent Labor Certification Program (PERM) via conference call. DOL was interested in beginning a dialogue and receiving feedback from regarding the PERM program's role in employment-based immigration, its current regulatory framework, and any general areas of concern to the stakeholder community.
     

Expand the existing Deferred Action for Childhood Arrivals (DACA) program to include more immigrants who came to the U.S. as children. "Under the initial DACA program, young people who had been in the U.S. for at least five years, came as children, and met specific education and public safety criteria were eligible for temporary relief from deportation so long as they were born after 1981 and entered the country before June 15, 2007." Under the executive action, the White House sought to expand DACA so that individuals who were brought to this country as children can apply if they entered before January 1, 2010, regardless of how old they are today, and to grant DACA relief for three years at a time, rather than two.

  • On December 3, 2014, a group of 26 states sued the United States in the Texas Southern District Court, Brownsville, to block the expansion of DACA called for by this executive action [Case 1:14-cv-00254]. On February 15, 2015, Judge Andrew S. Hanen issued a temporary injunction, halting the expansion while litigation proceeds.
  • USCIS initiated a campaign to recall certain three-year DACA EAD cards that were issued issued or re-mailed to DACA recipients after February 16, 2015 (the day the court's injunction was in place).  

Secretary Jeh Johnson is issuing a new DHS-wide memorandum that makes clear that the government’s enforcement activity should be focused on national security threats, serious criminals, and recent border crossers. "DHS will direct all of its enforcement resources at pursuing these highest priorities for removal."

Other executive action initiatives

  • "DHS will create a new deferred action program for people who are parents of U.S. Citizens or Lawful Permanent Residents (LPRs) and have lived in the United States for five years or longer if they register, pass a background check, and pay taxes."
  • "An interagency working group will explore ways to ensure that workers can avail themselves of their labor and employment rights without fear of retaliation."
  • "Reducing family separation for those waiting to obtain LPR status. Due to barriers in our system, U.S. citizens and LPRs are often separated for years from their immediate relatives, while they wait to obtain their LPR status. To reduce the time these individuals are separated, DHS will expand an existing program that allows certain individuals to apply for a provisional waiver for certain violations before departing the United States to attend visa interviews."
  • "Ensuring that individuals with lawful status can travel to their countries of origin. DHS will clarify its guidance to provide greater assurance to individuals with a pending LPR application or certain temporary status permission to travel abroad with advance parole."
  • "Creating a White House Task Force on New Americans. The President is creating a White House Task Force on New Americans to create a federal strategy on immigrant integration."
  • "Promoting Citizenship Public Awareness. DHS will launch a comprehensive citizenship awareness media campaign in the 10 states that are home to 75 percent of the overall LPR population. USCIS will also expand options for paying naturalization fees and explore additional measures to expand accessibility, including studying potential partial fee waiver for qualified individuals."
  • "Ensuring U.S. Citizens Can Serve. To further our military’s needs and support recruitment efforts, DHS will expand an existing policy to provide relief to spouses and children of U.S. citizens seeking to enlist in the military, consistent with a request made by the Department of Defense."