Late last month, President Obama announced his plan to significantly change U.S. immigration policy through executive actions. Obama’s planned measures are fairly unique, in that he will attempt to modify rules in a broad variety of areas, but primarily through directives to his administrative agencies, as opposed to Congressionally enacted laws. Therefore, it will not be fully clear how the directives will impact employers until Obama’s administrative agencies begin implementing them. Nevertheless, there are at least three pieces of information that employers can glean for the time being.
1. Obama’s Measures Should Increase The Pool Of Foreign Workers, Including Both Skilled And Unskilled Workers.
Perhaps most importantly for employers, Obama’s planned actions should significantly increase the pool of foreign workers available for hire. The actions include several measures that would make it easier for foreign nationals to work in the U.S. For example, Obama will seek to expand the current “Deferred Action for Childhood Arrivals” program, which allows non-citizens to work in the U.S. legally so long as they came to the country as children and meet certain conditions. The executive branch also plans to create a similar program for parents of U.S. citizens or lawful permanent residents, subject to certain conditions. These programs will be available to individuals regardless of whether they possess specialized skills or experience.
Employers who rely on skilled workers also should reap some benefits. For example, Obama’s directives seek to: (i) ensure that all available immigrant visas are issued each year (which does not always occur); (ii) help multinational companies reassign skilled workers to positions in the U.S. (under the L-1B visa program); (iii) streamline procedures for issuing both temporary visas and permanent employment authorizations; and (iv) allow the spouses of skilled foreign workers to work in the U.S. legally.
Although many of these changes would help U.S. employers, some may not. For example, Obama’s plan would make it easier for foreign nationals to change employers while working in the U.S. If this change becomes effective, it will be particularly important for employers to enter into enforceable non-competition agreements with skilled foreign employees, in order to protect any investments they have made into helping the employees work in the U.S. Additionally, the action would help foreign national entrepreneurs work in the U.S. This likely would increase competition, although it also could help prudent U.S. employers develop valuable new relationships.
2. The Plan Would Provide Additional Training Opportunities, Particularly In Fields Relating To Science, Technology, Engineering, And Math.
President Obama also will seek to provide additional training opportunities for foreign nationals who have come to the U.S. Currently, foreign national students in certain fields may obtain “practical training” by working in the U.S. in their fields for up to 29 months after they graduate. Obama’s plan seeks to provide these opportunities to students in a broader range of fields and for a longer period of time. This may provide a good opportunity for employers in science and technology-related industries to increase their workforces of skilled employees, potentially at a lower cost than what they otherwise would incur.
3. Employers Should Watch For Additional Clarification.
Although broad changes to immigration law are likely to occur, it is not yet clear how these new measures will impact employers. Because Obama is bypassing Congress, these measures will carry less weight than true immigration laws. Republicans can (and almost certainly will) challenge the actions in court, by asserting that President Obama exceeded his executive authority. Moreover, after President Obama leaves office, his successor would have the authority to modify or even rescind most these measures unilaterally.
Even if the actions stand, it is too early to tell exactly how they will affect employers. With respect to most of the planned measures, President Obama’s agencies will need to implement them through regulations and other administrative actions that more specifically define how the measures will operate. This may not happen for months, and possibly longer. Until that point, employers will not know exactly what to expect. This is potentially problematic, given that some of the measures potentially could require employers to significantly change their procedures (such as their procedures for verifying employees’ statuses). Therefore, it is particularly important for employers to keep apprised for any developments concerning these measures, and remain ready to modify their policies and practices after the executive branch has provided more guidance.