On Nov. 20, President Obama announced a wide-ranging series of executive actions to reform U.S. immigration policy.  Although these unilateral actions will most certainly be challenged by Congress and in the courts, and although none are yet in effect, it is important for employers to immediately assess how the President’s initiative may impact their operations and employees.

The announcement included:

  • Expanding the population eligible for the Deferred Action for Childhood Arrivals (DACA) program;
  • Allowing parents of U.S. citizens and lawful permanent residents (LPRs) who have been in the United States since Jan. 1, 2010, to request deferred action and employment authorization;
  • Creating a new Provisional Legal Status for agricultural workers and others;
  • Expanding the use of provisional waivers of unlawful presence to include the spouses and sons and daughters of LPRs, and the sons and daughters of U.S. citizens;
  • Amending and expanding immigrant and non-immigrant programs that create jobs; and
  • Making additional commitments to border security and enhancing investigative resources.

The White House predicts that roughly 4.9 million individuals may be affected.  It is important to note that none of these actions are effective immediately; some will be implemented fairly early in 2015, and others later in the year.

Implications for employers include these:

  • Penalties for hiring undocumented workers will be significantly increased, with new penalties for fraud and identity theft.
  • A Provisional Legal Status category will be created as a path to permanent residency.
  • Mandatory electronic employment verification is projected to be phased in over the next five years, with some exemptions for small businesses.
  • A new tamper-resistant Social Security card will be devised, and an increased emphasis placed on using only tamper-resistant documents during the I-9 process.
  • A new “labor law enforcement fund” will be created to increase scrutiny of industries, like agriculture, that employ significant numbers of immigrant workers.
  • Employers will see an expanded E-Verify system and increased monitoring of employers by Immigration and Customs Enforcement.
  • The administration will renew its focus on publicizing and enforcing labor laws, and on protecting workers against retaliation for exercising “labor rights.”
  • The use of Optional Practical Training for foreign students will be expanded.
  • There will be L-1B clarifications and work authorization for spouses of certain H-1B non-immigrants.

The President’s plan also includes, among other initiatives, a commitment by the administration to:

  • Eliminate existing backlogs in the family-sponsored immigrant system;
  • Cut red tape for employers;
  • Create a startup visa category for job-creating entrepreneurs;
  • “Attach” a green card to certain STEM (science, technology, engineering, math) diplomas;
  • Enhance initiatives for travel and tourism to the United States;
  • Create a new visa category for employees of federal national security science and technology laboratories;
  • Provide aid to additional classes of individuals for humanitarian reasons; and
  • Modernize the U.S. immigration system.

As noted, there are at present no implementing regulations or policies for any of these initiatives, nor do we expect any substantive guidance until 2015.  However, it is undisputed that these are major changes to U.S. immigration law that must be understood and anticipated by employers.  For instance, any business should immediately decide how it will treat employee confessions of prior immigration transgressions in an effort by the employee to take advantage of these new initiatives (i.e., if any employee previously gave the business incorrect information during the initial hire process, how will the business treat the employee relative to that confession?).

Throughout this process, we will continue to remind employers to develop and implement not only legal but also across-the-board policies that will ensure consistent treatment of all affected individuals.