Most companies will be impacted by the immigration initiatives announced by the White House this week. It will take up to several months for the initiatives to be implemented in order to give the U.S. Department of Homeland Security (DHS) time to ramp up. And some of the initiatives are aspirational in nature so the end result and timing is unclear at this time. Be advised that because these are executive orders, they are subject to repeal in the future. The impact to employers includes the following:
- I-9 Issues from Legalization: Many undocumented workers will be eligible to apply for and receive a work permit. They will then go to Social Security and apply for a social security number. As a result, many will come forward to Human Resources and request that their HR records be updated with their actual name and social security number. As a result, a new I-9 will need to be completed and stapled to the old one along with an explanatory memo. Whether the HR Information System at the company can retain their old seniority date is an open question specific to that employer. Also be advised that in California an employer cannot terminate or otherwise discipline an employee for the prior misrepresentation at the time of hire regarding his name and SSN where he now comes forward with new work authorization as a result of temporary or permanent legalization of status.
- STEM Majors and H-1B Cap: Foreign students who graduate from a U.S. college already receive a 12 month work permit after graduation –known as Optional Practical Training (OPT). If they are a STEM major (science, technology, engineering, or math), they can already extend their work permit for an additional 17 months so long as the employer uses E-Verify. The White House announced that it will lengthen the STEM extension beyond 17 months, but did not specify the length. The result will be that employers will be less dependent on filing H-1B petitions for their software developers and engineers. This is welcomed by the business community given that the annual quota for H-1B visas is way too low to meet market demand.
- Entrepreneurs: In a promising but very abstract announcement, the White House said it will seek to allow entrepreneurs to enter the U.S. without a visa (which means parole them in) in order to establish and build a company, create jobs, etc. This will benefit entrepreneurs from countries such as China and India where no E-2 non-immigrant investor visa treaty exits between the two countries.
- Talent Support: DHS has advised it will adjust the criteria to make it easier for employers to sponsor highly talented individuals for permanent residency based on a national interest waiver of the usual requirement to prove a shortage of U.S. workers for the position. In addition, DHS advised that employers who need to transfer workers from overseas affiliates that possess specialized and critical proprietary skills will be able to transfer them with greater ease.
- Deferred Action for Parents (DAP): Under the order, undocumented parents would be allowed to obtain a work permit and temporary status as long as they have a U.S. Citizen or permanent resident child of any age as of 11/20/2014 and the child is living in the U.S. The parent must also have been physically present in the U.S. since 01/01/2010 (almost 5 years).
- DACA Expansion: In 2012, the White House announced its program, known as “Deferred Action for Childhood Arrivals” (DACA), granting work permits and temporary status for individuals who had entered the U.S. before age 16 and before 06/15/2007, had graduated from a U.S. high school, and were age 30 or younger at the time of application. This past week, the White House announced that the age cap would be eliminated and the entry date would be changed from 06/15/2007 to 01/01/2010.
There are many pro bono or low cost assistance centers that can assist these parents of U.S. Citizen children. Catholic Charities runs one of the largest immigration clinics in the U.S. and has an excellent reputation. In addition, local bar associations frequently have a close working relationship with a reputable public law center. Applicants must be careful to avoid “notarios” and other operators who may seek to take advantage of them.
For more details from DHS about the White House initiatives, see: http://www.dhs.gov/immigration-action.