Obama Executive Actions on Immigration – What Employers Should Know

On Nov. 20, 2014, President Obama announced a series of executive actions on immigration, which are outlined on the USCIS website and described in three memoranda issued by the Department of Homeland Security.  These  initiatives may have a significant impact on certain employers, not only by granting employment authorization documents (EADs) to an estimated 4 to 5 million undocumented persons, but also by modifying certain rules relating to the temporary employment of highly skilled workers and the process of obtaining employment-based green cards for such employees.  This advisory summarizes key aspects of the executive actions and how they might impact U.S. employers.

Expansion of DACA Program

The Deferred Action for Childhood Arrivals (DACA) program, originally announced on June 15, 2012, applies to persons who came to the United States before turning 16 years old and who meet certain other criteria.  The DACA program is being expanded to (a) remove the upper age restriction, which was 31 years of age under the original program; (b) shorten the continuous U.S. residence requirement from June 15, 2007 to Jan. 1, 2010; and (c) extend the deferred action period and employment authorization from two years to three years.  These changes are expected to be implemented by Feb. 20, 2015.

Deferred Action for Parental Accountability (DAPA)

Parents of U.S. citizens and lawful permanent residents will be able to apply for deferred action and a 3-year EAD if they have been in the United States since Jan. 1, 2010 and if they meet certain other criteria (e.g., payment of taxes and pass criminal background check).  This new DAPA program will be implemented by May 20, 2015 and it is expected to be similar to the existing DACA program. 

Impact of DACA and DAPA Programs on Employers

It is estimated that the expanded DACA program and the new DAPA program may benefit up to 4.4 million undocumented individuals.  Thus, employers in certain industries, such as restaurants, hotels, and manufacturing, may see a significant number of employees come forward with a new identity and a new EAD.  If an employer wishes to terminate a person due to the prior submission of false documents, it is best to consult with legal counsel to make sure it is done in a nondiscriminatory fashion and in accordance with other federal and state employment laws.  If an employer wishes to continue employing a person who comes forward with a new EAD, the employer must take steps to update its I-9 employment eligibility form for that person.  According to the Guidance for Employers relating to DACA issued by USCIS on November 20, 2012, the employer should complete a new I-9 form with the original date of hire and attach it to the previously completed I-9 form if the name, date of birth, attestation regarding immigration status, or social security number in Section 1 of the I-9 form has changed. 

Employment of Highly Skilled Workers

Several initiatives may benefit companies that employ highly skilled workers.  Although the details for these programs are not yet known, the following types of actions may be taken:

• Modify the quota system for allocating immigrant visas to increase the number of green cards available to highly skilled workers and to reduce the long backlogs to legal immigration.
• Broaden the green card portability rules to allow employees to take new jobs or to change employers while facing lengthy delays in the green card application process.
• Authorize the issuance of EADs to employees who have approved immigrant petitions but who are unable to apply for green cards due to the annual quotas.
• Clarify the standard by which a national interest waiver may be granted to foreign investors, researchers and founders of start-up enterprises to benefit the U.S. economy, and authorize temporary parole to those who may not yet qualify but who have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies and cutting-edge research.
• Expand and extend the use of practical training for foreign students who graduate from U.S. colleges and universities, while at the same time safeguarding the interests of U.S. workers in related fields.
• Provide better guidance on the meaning of “specialized knowledge” for global companies that wish to transfer key employees to the United States on L-1B visas.
• Review PERM labor certification program to modernize the recruitment procedures and possibly adopt a “harmless error” concept as existed in the past.
• Finalize a rule to provide EADs for spouses of H-1B workers who are in the process of obtaining green cards.

The details and timing for implementing many of the above measures are uncertain, since many of them may require a change in regulations with a notice and comment period.  It also remains to be seen whether the U.S. Congress will act on comprehensive immigration reform, which could preempt some of the executive actions taken by President Obama.  We plan to issue additional advisories in the future as key components of the executive action on immigration are implemented.