On November 20, 2014, President Barack Obama announced his executive action plan to address the country’s “broken immigration system.” Referred to as the Immigration Accountability Executive Action, the plan will, among other steps, deploy additional resources to the border, focus deportation efforts on criminals and those who recently cross the border illegally, expand employment authorization for highly skilled workers, and provide certain undocumented immigrants temporary “deferred action” relief from deportation. (See the White House’s Fact Sheet on the Immigration Accountability Executive Action).
Although its constitutionality remains the subject of debate, the executive action plan will no doubt impact American employers. First, as we previously reported, the plan will expand employment authorization for highly skilled workers. (See our discussion on the policy changes to the employment-based and L-1B visa programs, the Optional Practical Training system, among other changes).
In addition, the executive action will allow undocumented immigrants to apply to remain in the country temporarily if they have lived in the United States for more than five years, have children who are U.S. citizens or legal permanent residents, and pass a criminal background check. The White House explains that individuals “will have the opportunity to request temporary relief from deportation and work authorization for three years at a time if they come forward and register, submit biometric data, pass background checks, pay fees, and show that their child was born before the date of this announcement.” U.S. Citizenship and Immigration Services (USCIS) expects to implement this part of the plan within 180 days of the November 20 announcement. (See USCIS announcement).
Although the specifics of the deferred action, including the form of temporary work permits, will evolve over the coming months, employers should remain mindful of their continuing obligations to comply with all federal and applicable state employment eligibility verification requirements, including the Form I-9 and any E-Verify obligations under state law or federal contract. Employers should also remain mindful of the prohibition against knowingly hiring or continuing to employ persons without work authorization. The executive action plan does not alter these obligations, and Immigration and Customs Enforcement (ICE) is expected to continue its enforcement efforts in these areas, particularly in light of the White House’s continued goal to “crack down on companies” that hire undocumented labor.