January 13, 2015Client Alert

Higher Education and President Obama’s Immigration Executive Actions

Higher Education and President Obama’s Immigration Executive Actions

In late November 2014, President Obama announced a series of immigration-related initiatives.  Although only one of the President’s actions dealt directly with higher education, it is likely that several other components of the initiative will affect institutions of higher education.

Optional Practical Training

The direct reference to higher education in the President’s immigration initiative is the proposal to lengthen the period of Optional Practical Training (OPT) employment authorization after an individual holding a student visa graduates from a U.S. college or university with a degree in the Science, Technology, Engineering and Mathematics (STEM) fields. In addition, the President instructed that a change be made to expand the degree programs eligible for STEM treatment and ominously noted that the enforcement agencies should require “stronger ties to degree-granting institutions, which would better ensure that a student’s practical training furthers the student’s full course of study in the United States.”

It is not yet known what responsibilities might be placed on institutions of higher education to assess whether the work opportunity is strongly tied to the student’s course of study. While current regulations require a connection between a foreign student’s field of study and his or her OPT employment, there has been little effort to enforce such a requirement.

Deportation Priorities and Deferred Action

The deportation priority setting directives issued by the President, as well as the expansion of the deferred action program, will also affect higher education students. The new set of priorities for deportation make clear that students who are undocumented but are not terrorists, criminals or recent border crossers will not be among the priorities for removal from the United States.  Furthermore, if a student is eligible for deferred action treatment and is already in the deportation process, the proceedings will be dismissed.

The deferred action program will now cover the undocumented parents of U.S. citizens and green card holders, allowing these individuals to obtain employment authorization if they pass background checks. In addition, the childhood arrival deferred action program grants employment authorization to individuals who entered the United States before their 16th birthday. Under the President’s initiative, individuals over the age of 31 will now be allowed to apply for deferred action under the childhood arrival program. 

It is expected that between 4 and 5 million additional individuals will be eligible to benefit from the deferred action program. These individuals will now be eligible to obtain social security numbers and perhaps driver’s licenses. If the experience with the 500,000 individuals who took advantage of the 2010 childhood arrival deferred action program is any indication, many of the new deferred action beneficiaries will take on better paying jobs and/or attend an institution of higher education. While federal financial aid will not be available to deferred action beneficiaries, in at least eighteen states they will be eligible for in-state tuition and, in a few states, they will be eligible for state-funded financial aid.

H-1B Dependent Employment Authorization

The H-4 dependent spouses of individuals holding H-1B status (professors and other professionals) will be eligible for employment authorization for the first time under the President’s directives.  Employment authorization will be available to H-4 dependents once the green card process has been initiated on behalf of the H-1B professional.

National Interest Waivers

The President seeks to broaden the use of the National Interest Waiver program, which allows certain individuals with advanced degrees or exceptional ability to obtain green cards without employer sponsorship. By clarifying the standards under the program, the initiative seeks to attract more applications by those individuals, including professors, whose research or other contribution has a national impact.

Inventors, Researchers and Start-Up Business Leaders

The President has directed that certain inventors, researchers and start-up business leaders have a path to stay in the United States as they develop their inventions/research/business ideas and work toward eligibility under the National Interest Waiver program. The initiative would require these individuals to secure substantial U.S. investor financing and/or hold the promise of innovation and U.S. job creation through the pursuit of cutting-edge research or the development of new technologies.   

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