On Nov. 14, 2014, President Barack Obama issued an Executive Order that covered many aspects of the immigration process. To the public, the focus of that EO was the undocumented aliens that live in the United States and how the government would alter its enforcement priorities to allow millions of them to stay. However, there are important aspects of the EO that potentially can impact employers in a wide range of industries. Unfortunately, the true parameters of the EO will not be apparent until the implementing regulations are issued later this year. But, until then, here are the key provisions of the EO that employers must know so they can appropriately develop and implement their immigration strategies.
1. Deferred action and employment authorization for an estimated five million undocumented workers
The EO expands the population of individuals eligible for Deferred Action for Childhood Arrivals, and also promises to create a Deferred Action program for Parents of Americans. Under the EO, foreign nationals covered by the DACA and DAPA programs will receive work authorization and deferral of deportation if they are not considered high priority on the government's apprehension, detention and removal list. These actions will give status and employment authorization to millions of FNs who may be unable to work or who are working illegally. This will expand the pool of eligible workers in many fields and force HR professionals to get up to speed with whatever new employment authorization documents the government issues so they can satisfy the employers Form I-9 obligations.
The EO also will test the employers honesty policies. Some of these FNs may be working under assumed names and may have presented false or stolen documentation to satisfy the Form I-9 requirements when they were hired. How will employers react if these FNs suddenly present new, valid status and employment documentation and confess that the prior information was not accurate? Decisions on these issues can have a broader ripple effect throughout the workforce as they may set a precedent on how the employer handles misrepresentations in employment applications, resumes, or other aspects of its honesty policies. At least one state, California, has enacted a new law that prevents any employer from enforcing its honesty policies against FNs in these circumstances. Expansion of work authorization to these new FN populations will pose a challenge to employers to remain compliant in a shifting immigration landscape.
2. Expansion of OPT STEM employment for foreign students upon graduation
The EO also promises to expand employment options for FNs graduating from American colleges and universities with degrees in science, technology, engineering or mathematics, the so-called STEM degrees. At the present time, these students typically receive one year of post graduate optional practical training (OPT) and then must be sponsored for the H-1B classification. Due to quotas on the number of H-1Bs that can be approved each year, many are not selected for the H-1B classification and thus must leave the country when their OPT expires unless they qualify for the STEM extension. If they do not, we end up deporting our best and brightest because we have no legal mechanism under current law that will allow them to remain in this country.
The EO promises to expand the degree programs eligible for STEM OPT extensions and to extend the duration of these extensions. This will allow employers more predictability in recruiting and retaining this talent. Moreover, with the expansion of the STEM OPT period, employers will gain additional opportunities to file H-1B petitions for the employees and thus enhance their probabilities of securing a place in the H-1B quota.
3. Adjustment benefits for beneficiaries of employment-based immigrant petitions
The EO also promises FNs increased portability while they wait for green card approval. Under current regulations, a FN cannot file their green card application until their quota has been reached, and the government cannot approve them unless their quota remains current. Once the FNs finally file, however, they gain portability, namely, the ability to move to a new employer without losing their green card application, as long as they will work in an occupation that is the same or similar to the one for which they were sponsored. Until that occurs, the process creates severe hardships for employers fearful of placing these FNs in new positions and for the FNs who are concerned about losing the green card opportunity they have waited so long to obtain.
The EO would change the rule by allowing FNs to file green card applications as soon as they have completed the preliminary steps. The government still could not approve the cases until the FNs quota was current, but they would gain portability much sooner. This increased portability presents new challenges to employers. Historically, they could rely on the delays in the green card process to retain these FNs. With increased portability, however, this employee population will have more options. As a result, their current employers will have to develop new strategies to retain them. At the same time, organizations will have new opportunities to attract this talent in a manner consistent with portability requirements.
4. Work authorization for H-4 spouses of H-1B employees
In May 2014, the U.S. Citizenship and Immigration Services issued a proposed rule that would expand work authorization to certain H-4 spouses of H-1B employees. In his EO, President Obama directed the USCIS to issue the final rules as quickly as possible. Under the proposed rule, H-4s would be eligible for work authorization if the principal H-1B is the beneficiary of an approved I-140 immigrant petition or has secured an extension of their H-1B status under AC-21. When this regulation is issued, employers will have a new class of potential employment candidates. At the same time, they will need to develop the policies and processes required to properly vet these candidates and then track their status upon hire. This also may require additional training for recruiters and the HR or other professionals assigned to evaluate these candidates and complete the Form I-9 process.
5. Clarification of specialized knowledge for the L-1B classification
The EO also promises to clarify the specialized knowledge requirements that are necessary to qualify for the L-1B nonimmigrant visa category. In recent years, the USCIS has adopted increasingly myopic and unpredictable interpretations of this term that make it difficult, if not impossible, for organizations to use the category. Clarification and guidance from the USCIS, hopefully, will allow employers to have a more comprehensive understanding of the USCISs L-1B regulatory framework and more appropriately organize and prepare L-1B filings that meet the clarified definition of specialized knowledge. This, in turn, will allow employers to more readily secure the talent they need from a corporate relative abroad and increase their competitive edge in an increasingly global economy.
Robert S. Groban, Jr. and Catherine F. Silie are members of the national immigration law group at Epstein Becker Green.
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