green card applicants with approved immigrant petitions to change jobs under certain circumstances, provided the new job is “same or similar” to the job approved on the immigrant petition. The law provides much needed flexibility for applicants stuck in visa backlogs, but guidance as to what constitutes a “same or similar” job has been largely absent, resulting in inconsistent adjudications. Fortunately, on November 20, 2015, USCIS issued a draft policy memo that, once finalized, will clarify how immigration officers adjudicating petitions to “port” green card applications to new jobs should apply the “same or similar” test. The final memo should lead to improved consistency and predictability. 3. DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA)/DEFERRED ACTION FOR PARENTS OF AMERICAN AND LAWFUL PERMANENT RESIDENTS (DAPA) On November 20, 2014, President Obama issued an executive order offering protection from deportation and work authorization to individuals who entered the United States as children (DACA) (an expansion of the original program), and parents of U.S.

citizens and green card holders. The expanded DACA and DAPA programs were opposed by a coalition of states. During this litigation, U.S. Judge Hanen (Southern District of Texas – Brownsville) issued a preliminary injunction preventing the implementation of these programs. The Fifth Circuit upheld the injunction and the U.S. government has appealed to the U.S.

Supreme Court. On January 19, 2016, the U.S. Supreme Court agreed to hear the federal government’s appeal.

If implemented, expanded DACA/DAPA could offer work authorization to around 5 million people. 4. NEW LEGISLATION THREATENS TO LIMIT THE H-1B PROGRAM Lawmakers introduced several pieces of legislation at the end of 2015 that would severely limit the H-1B program’s ability to attract foreign talent. Republican presidential candidate Senator Ted HAYNESBOONE.COM Cruz introduced a bill in December that would end the OPT program, which allows foreign students to work after graduation under certain circumstances, and which many employers use to evaluate whether to pursue an H-1B visa for a particular foreign national. Called the American Jobs First Act of 2015, the bill would also create a “layoff cool-off period” that would require employers to wait two years after layoffs, employee strikes or furloughs before petitioning to employ a foreign national through the H-1B program. And the bill would effectively set a minimum wage of $110,000 for H-1B employees by requiring employers to pay foreign nationals the higher of (1) what an American worker who did similar work in the prior two years was paid, or (2) $110,000. Also in December, Senators Bill Nelson (D.

Fla.) and Jeff Sessions (R. Ariz.) introduced legislation that would cut the available number of H-1B visas by 15,000. The Protecting American Jobs Act would reduce the visas available to foreign nationals with bachelor’s degrees from 65,000 to 50,000 and would prioritize jobs paying the highest wages. With demand for H-1B visas already far outstripping supply even under the current quota, the Act would make the H-1B an even less reliable option for foreign nationals and employers. Finally, Senators Chuck Grassley (R.

Iowa) and Dick Durbin (D. Ill.), both outspoken critics of the H-1B program, introduced the H-1B and L-1 Visa Reform Act of 2015 which, among other things, would require employers to recruit U.S. workers before pursuing an H-1B for a foreign national, increase the Department of Labor’s authority to investigate, audit and penalize employers of H-1B visa holders, and establish a wage floor for L-1 workers. 5. CONTINUED OSC ACTIVITY We expect the trend of increased OSC enforcement to continue in 2016.

As more employers sign up (voluntarily or involuntarily) for E-Verify, the information-sharing between USCIS and the OSC will continue to provide ample data for new investigations. EMPLOYMENT-BASED IMMIGRATION: 2015 YEAR IN REVIEW AND 2016 FORECAST 5 .