President's Immigration Executive Action Will Impact Employers

On November 20, 2014, President Obama announced executive action to allow millions of undocumented immigrants to remain in the United States temporarily and apply for work authorization. This executive action also includes improvements to employment-based immigration procedures and policies. All of these measures will significantly impact U.S. employers and their employees.

There are about 11 million undocumented immigrants in the U.S. Many of them have been here for years and have U.S.-born children who are U.S. citizens. In June 2013, the Senate passed a bipartisan, comprehensive immigration bill that included an avenue for legalization for many of the 11 million undocumented immigrants. The bill also included new visa categories for lesser-skilled positions and improvements to immigration for higher-skilled employees (for example, more H-1B visas and more employment-based green cards). The Republican House of Representatives has not voted on the Senate bill and has not passed other immigration reform legislation.

A few months ago, President Obama announced that he was looking at ways to address problems with the immigration system without congressional action. The President directed his advisors to determine how much he could do under presidential executive authority. On November 20, the President went public with his plan. Details on many parts of the plan will need to be worked out over the coming months, but below is a summary of what we know so far.

Deferred Action for Parental Accountability (DAPA)

The President has authority to exercise prosecutorial discretion, i.e., to prioritize the order in which undocumented immigrants will be deported. The President has announced that he will focus on deporting terrorists, criminals and recent illegal entrants. He will offer "deferred action" to others. A grant of deferred action allows an undocumented immigrant to remain in the U.S. for a limited time without fear of deportation. The beneficiary of deferred action may apply for work authorization to work lawfully in the U.S. during their period of deferred action.

The President is offering deferred action to parents of U.S. citizen children and lawful permanent resident children. Applicants for "Deferred Action for Parental Accountability" (DAPA) will have to prove that they have been in the U.S. for five years. They will have to pass background checks and pay back taxes. DAPA will be granted for a period of three years. It could take about six months for the DAPA application process to be set up.

Employers will need to consider how they will deal with employees who come forward and admit they have been working illegally, but now have work authorization under DAPA. Employers may be asked to provide documentation to DAPA applicants to help them prove five years of physical presence in the U.S. Employers may be concerned about providing documentation to the government confirming that the applicant has been working illegally for the employer. Employers will be wrestling with these issues in the coming months.

Expansion of Deferred Action for Childhood Arrivals (DACA)

In 2012, President Obama established the Deferred Action for Childhood Arrivals (DACA) program. This is a deferred action program for young people brought to the U.S. illegally as children. A young person meeting certain age and physical presence requirements may be granted deferred action for two years. Now President Obama will expand DACA eligibility to more people. The age restriction will be eliminated and the physical presence requirement will be adjusted. Deferred action will be granted for three years instead of two. Many had hoped that the President would extend deferred action to the parents of DACA recipients, but he did not. As discussed above, deferred action has been limited to parents of U.S. citizens and lawful permanent residents.

Improvements to Employment-Based Immigration

The President does not have the authority to create new visa categories (such as visas for agricultural workers) or to increase the number of H-1B temporary visas or employment-based green cards. But his executive action does include new regulatory and policy measures to improve employment-based immigration:

• Change in time to file I-485 Adjustment of Status applications: The second step for most employment-based green card processes is the I-140 Immigrant petition submitted by the employer. The third step is the I-485 Adjustment of Status application filed by the employee and his/her family members. Filing an I-485 application allows family members to get work authorization. Under current rules, the employee and family members cannot file I-485 applications until a green card number is available for them under annual per-country quotas. Due to significant backlogs, particularly for persons born in India or China, this can mean a wait of five to 10 years or more before the employee and family can file I-485 applications. The employee is stuck in the same green card job throughout this long wait and family members cannot work. The President has now directed that regulations be amended to allow filing of I-485 applications when the I-140 petition is approved. It will no longer be necessary to wait years until the green card number is available. This will allow greater career flexibility for employees and their family members. It could take a year for the new regulation to be in place.
• H-4 spouse work authorization: The spouse of an H-1B worker is in H-4 status. H-4 spouses are not presently allowed to work. United States Citizenship and Immigration Services (USCIS) proposed a rule change earlier in 2014 that would allow H-4 spouses to work in certain circumstances. The President has directed that this proposed rule be finalized soon. It is not yet known whether the final rule will be identical to the proposed rule.
• F-1 Optional Practical Training: Foreign students on F-1 student visas may remain in the U.S. for 12 months after graduation and work for a U.S. employer in "Optional Practical Training" (OPT). An F-1 student may get an additional 17 months of OPT if they are graduating in a science, technology, engineering and math (STEM) field and their employer uses the optional E-Verify system. The President has directed that the OPT rules be revised to allow additional STEM OPT time and to make other changes to the OPT system.
• L-1B specialized knowledge: The L-1B specialized knowledge worker visa allows multinational companies to transfer employees with specialized knowledge from a foreign subsidiary to the U.S. In recent years, USCIS has taken a restrictive view of specialized knowledge, causing frustration for employers. USCIS has been promising new guidance defining specialized knowledge. This guidance will now be issued, though the content is not known.
• Entrepreneurs and researchers: Investors and entrepreneurs who meet certain criteria will be allowed to enter or remain in the U.S. to start businesses under a category of immigration authorization called "parole." Entrepreneurs and researchers will become eligible for "national interest waivers," allowing them to apply for employment-based green cards without requiring employer sponsorship or PERM labor certification.
• I-485 portability "same or similar" standard: Under current law, an employee with a I-485 Adjustment of Status green card application that has been pending 180 days or more may change jobs with the same employer or change employers and keep his/her green card case alive if the new job and the green card job are the "same or similar." Guidance will be issued to clarify the meaning of "same or similar."
• PERM labor certification improvements: In most employment-based green card cases, the employer must go through the PERM labor certification process. This is a lengthy and difficult labor market test requiring the employer to advertise and prove that there are no qualified U.S. workers available for the position. The President's executive action includes a directive that improvements be made to the PERM labor certification process.
• Visa modernization: The President will issue a Presidential Memorandum directing all agencies to look for ways to improve processes and procedures to issue as many visas and green cards as possible under current law. It is not certain what benefits will result from this process, but it will provide a forum for employers to recommend improvements and changes.

More Details Expected

As noted, there are many details to be addressed in the coming months to flesh out President Obama's executive action. Employers will need to monitor developments so they can deal with current employees who announce they have been working illegally and to take advantage of changes benefitting employees and their families seeking work authorization and green cards. Join us on December 10, 2014 for a webinar to begin this discussion.