Wednesday, October 29, 2014


This November or December the President may expand the H-1B rules and double the number of employment-based green cards, through Executive Action.  Either would be welcome to an American industry that cannot find US workers in low supply occupations such as healthcare and information technology.  The Executive Action will happen between the November 4, 2014 and January 3, 2015.

Earlier this month the President hinted that he will use Executive Action to liberalize the H-1B program.  One method may be to finally enact rules that extend work authorization to spouses of H-1B workers.

Pundits have also said that the President could effectively double the number of employment-based green cards by changing the way that employment-based green card are counted.  Doubling the number of employment-based green cards would make most employment-based green card categories current, eliminating retrogression.

The Executive Action doctrine allows Presidents to implement changes to the law, as long as those changes are interpretations of established law and not the creation of new law.  There is a fine line between an interpretation and the creation of law.

The President controversially took Executive Action in June 2012 when he issued the Deferred Action for Childhood Arrivals (DACA).  DACA allows certain people who came to the United States as children and meet several guidelines may request consideration of deferred action for a period of two years, subject to renewal.

The President originally planned to use Executive Action this summer in other areas of immigration law.  He has postponed those plans until after Election Day in order to appease Democrats in tough districts. 

It is expected that the House of Representatives will remain firmly in control of the Republicans.  The Senate, which is presently in control of the Democrats, will almost surely flip to Republican control.  This will give the Republicans control of both houses of Congress when the new Congress starts on January 3, 2015.  For this reason, the President is expected to act before the new Congress is sworn into office.

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