Executive Summary: On November 20, 2014, President Barack Obama unveiled expansive executive actions on immigration, which will grant work authorization to millions of undocumented workers. In addition, the executive actions seek to boost the economy by streamlining the legal immigration process for graduates of U.S. STEM programs, professionals, highly skilled foreign workers, and entrepreneurs.
The principal components of President Obama's executive actions that will impact employers include:
- Undocumented individuals who are the parents of U.S. citizens and lawful permanent residents and can prove continuous presence in the U.S. since January 1, 2010, pass a criminal background check, and pay back taxes will be eligible to apply for deferred action status and to obtain a work authorization document valid for three years. The filing period for such applications is projected to open in 180 days.
- The deferred action program for childhood arrivals (commonly known as DACA) will be expanded by dropping the prior age cap; previously the program had been limited to childhood arrivals who turned 31 prior to June 15, 2012. All other DACA requirements are unchanged. The filing period for newly eligible DACA applicants is projected to open in 90 days.
- Immigration and Customs Enforcement (ICE) will increase worksite enforcement activities in coordination with the enforcement activities of the U.S. Department of Labor (DOL) and other federal and state agencies. This signals stepped up I-9, FLSA, and OSHA audits impacting sectors that have historically relied upon immigrant labor to fill low-wage jobs.
- New regulations will issue permitting employer-sponsored, highly-skilled foreign professionals to receive raises and promotions at an earlier stage of the lengthy green card process – which is good news for employers seeking to retain their services in the U.S. The new regulations also will permit the H-4 spouses of such workers to obtain work authorization in certain circumstances.
- Current administrative guidance governing the EB-5 foreign entrepreneur visa program will be clarified to encourage attracting foreign investment in job-creating enterprises.
- The post-graduate optional practical training work authorization period for foreign graduates of U.S. universities with STEM degrees will be lengthened to ensure employer access to such graduates when an H-1B visa is unavailable due to quota limitations.
- The process for U.S. employers to sponsor foreign workers for H-1B, L-1 and immigrant visas will be streamlined while ensuring that American workers are protected.
- The immigrant visa system will be modernized to reduce backlogs and expedite the employment-based immigration process for highly-skilled professionals who hold hard-to-fill positions with U.S. employers.
Employers' Bottom Line:
The executive actions will have a significant impact on employers as they will need to make significant changes to their I-9, HR and global mobility policies and practices to address their increasingly multi-cultural, international workforce. Detailed policy guidance will be issued in the coming weeks and months.
As a result of the new deferred action program and the expansion of the existing DACA program, employers may experience a surge in employee requests to update their records under a new identity with new identity and work authorization documents. Employers should refrain from terminating such employees under an honesty-only policy without first consulting legal counsel to discuss potential exposure to damages and civil money penalties under state and federal antidiscrimination laws. Employers also should require employees presenting new identity and work authorization documents to complete new I-9 forms and run them through E-Verify under the new identity if they are enrolled in the E-Verify program.
Employers also should consider updating HR policies to avail themselves of new recruitment and retention opportunities for STEM graduates and highly-skilled professionals for hard-to-fill positions. Multinational corporations will have more options to expand their U.S. operations by transferring essential workers and executives from abroad.