Employment Law Report
President Obama’s Executive Actions on Immigration
November 20, 2014, President Obama announced a series of executive actions aimed at helping to modernize some aspects of the immigration system which would encourage family unity and strengthen immigration options for foreign nationals studying and pursuing work in highly technical fields. At this point, the details for implementation of many of the initiatives outlined by the President are vague, but we will provide guidance here where possible and continue to report new details on the President’s plans as more specifics emerge.
The four main programs outlined in President Obama’s action are:
- Cracking Down on Illegal Immigration at the Border: the President’s actions will increase the chances that anyone attempting to cross the border illegally will be caught and sent back to his or her home country. The President’s actions will also centralize border security command-and-control to continue to crack down on illegal immigration.
- Deporting Felons, Not Families: the President’s actions focus on the deportation of people who threaten national security and public safety. He has directed immigration enforcement to place anyone suspected of terrorism, violent criminals, gang members and recent border crossers at the top of the deportation priority list.
- Accountability — Criminal Background Checks and Taxes: The President is also acting to hold accountable those undocumented immigrants who have lived in the U.S. for more than five years and are parents of U.S. citizens or Lawful Permanent Residents. By registering and passing criminal and national security background checks, millions of undocumented immigrants will start paying their fair share of taxes and temporarily stay in the U.S. without fear of deportation for three years at a time.
- Streamline Immigration to Boost our Economy and Promote Naturalization for Those Who Qualify.
We are not going to cover the first two points raised here because border security and removal priorities, while important to the country, are not really the subject of this article. Our purpose is to provide guidance to companies and individuals on options they and their employees have, family members and future job applicants may under the President’s plan to obtain employment authorization and/or permanent residence. Therefore, we will outline the President’s plans for points three and four listed above.
ACCOUNTABILITY – CRIMINAL BACKGROUND CHECKS AND TAXES
- DHS will establish a new deferred action program for parents of U.S. Citizens or LPRs who are not enforcement priorities and have been in the country for more than five years. 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 the President’s announcement on November 20, 2014.
- Under the initial DACA program, young people who had been in the U.S. for at least five years, came as children and met specific education and public safety criteria were eligible for temporary relief from deportation as long as they were born after 1981 and entered the country before June 15, 2007. DHS will expand DACA so that individuals who were brought to this country as children can apply if they entered before January 1, 2010, regardless of how old they are today. Going forward, DACA relief will also be granted for three years.
Streamline Immigration to Boost our Economy
- Providing portable work authorization for high-skilled workers awaiting LPR status (including their spouses). DHS will make regulatory changes to allow these workers to move or change jobs more easily. Also, DHS is finalizing new rules to give certain H-4 spouses employment authorization as long as the H-1B spouse has an approved LPR application.
- DHS will expand immigration options for foreign entrepreneurs who meet certain criteria for creating jobs, attracting investment and generating revenue in the U.S., to ensure that our system encourages them to grow our economy.
- In order to strengthen educational experiences of foreign students studying science, technology, engineering and mathematics (STEM) at U.S. universities, DHS will propose changes to expand and extend the use of the existing Optional Practical Training (OPT) program and require stronger ties between OPT students and their colleges and universities following graduation.
- DHS will clarify its guidance on temporary L-1 visas for foreign workers who transfer from a company’s foreign office to its U.S. office. DOL will take regulatory action to modernize the labor market test that is required of employers that sponsor foreign workers for immigrant visas while ensuring that American workers are protected.
- Due to barriers in our system, U.S. citizens and LPRs are often separated for years from their immediate relatives while waiting to obtain LPR status. To reduce the time these individuals are separated, DHS will expand an existing program that allows certain individuals to apply for a provisional waiver for certain violations before departing the United States to attend visa interviews.
It is important to note that at this point none of the President’s new programs are available for filing to obtain benefits. Also, these programs are not an amnesty. Applying for and receiving Deferred Action does not convey legal immigration status to an Applicant. It means that since CIS recognizes you are not a removal priority, CIS will allow you to obtain employment authorization. In other words, “if we’ve agreed not to take steps to remove you, you should be allowed to work and pay taxes like everyone else.” Don’t get me wrong, Deferred Action is a step in the right direction for many millions of unlawful immigrants, but it does not convey any legal immigration status on the Applicant. It remains to be seen how long Deferred Action will remain available for individuals and if Deferred Action being granted will ultimately lead to a path to permanent residence or some form of legal immigration status down the road.
On the business side of things, there was little to no detail as to how any of the President’s plans will be implemented or in what time frame. The grant of employment authorization to H-4 spouses would be a welcomed change. Further benefits for STEM students and graduates would also be a wise move on the part of the government to ensure that the U.S. continues to maintain its position as the global leader in research and development. That said, it may be some time before any of these measures become a reality and what form they will take.
We will provide you with the details as more information emerges . In the meantime, if you have questions or want to know what steps, if any, you might be able to take now to prepare yourself or your employees to obtain future benefits, please contact someone in the Wyatt Tarrant & Combs Immigration Group.