Last night, President Obama unveiled his Immigration Accountability Executive Actions in an effort to address the estimated 11 million undocumented immigrants currently living in the United States. While many of the specific details are still being worked on as some will require regulations and/or policy memoranda, it is President Obama’s goal to streamline legal immigration in hopes of boosting our economy and promoting naturalization for qualified individuals.
Essentially, the three critical elements highlighted in President Obama’s address were: (i) concentrating on stopping illegal immigration at the border; (ii) focusing on deporting people who threaten national security and public safety; and (iii) holding accountable undocumented immigrants who have lived in the United States since 1/1/2010 and are the parents of U.S. citizens or Lawful Permanent Residents by having them register, pass background checks, and requiring them to pay taxes.
But, what does this all mean? At this point a lot of the specifics of President Obama’s planned executive action remain unclear. But this is what we do know so far regarding the changes that will be coming:
Changes Through Administrative Guidance/Policy Memoranda
- Expand Deferred Action to provide work authorization and advance parole as follows:
- Deferred Action for Parents (DAP): Parents of U.S. citizens and Lawful Permanent Residents who have been continuously present since 1/1/2010 will be eligible if they pass background checks and pay their taxes. It will be granted for a 3 year period. (USCIS hopes to start accepting applications within 180 days.)
- Expansion of DACA: There will no longer be an age cap. DACA will be revised to change the date that continuous presence must have started. It will also be granted in 3 year increments, including for applications currently pending. (USCIS hopes to have this part ready within 90 days.)
- Expand the eligibility for Parole in Place (PIP) and confirm application of Matter of Arrabally & Yerrabelly in connection with advance parole.
- Expand National Interest Waivers to include entrepreneurs, researchers, inventors, and founders.
Regulatory Changes Through the Federal Register
- Certain foreign investors will be eligible to be paroled into the U.S. (or be granted PIP if already in the U.S.) for purposes of job creation.
- Expand the availability of optional practical training (OPT) for graduating F-1’s (i.e. expand the definition of STEM and increase the OPT time available for STEM graduates).
- Advance the ability of individuals with an approved employment-based immigrant petition with a non-current priority date to permit them to obtain the benefits of a pending adjustment. (This is expected to impact about 410,000 people.)
- Finalize legislation granting work authorization to the spouses of H-1B immigrants.
- Improve the adjudication process for L-1B’s by releasing guidance.
Changes Through a Presidential Memorandum
- Recapture unused permanent resident numbers based on what Congress has allocated.
- Refrain from counting derivative beneficiaries (such as spouses and children) toward preference quotas.
- Set up a new Task Force on New Americans.
Now about the things we don’t know. Despite the fact that there will be tweaks on the business immigration side, the proposed executive action is primarily focused on addressing the number of undocumented workers as well as the legally authorized foreign nationals in this country. Regardless of what sides of the political meter you are on, President Obama’s planned action is a starting point.
But it does raise questions for employers as there will be unknown implications. For example, U.S. employers will undoubtedly be confused by the extensions of temporary relief for eligible undocumented workers already in the U.S. This is bound to make compliance with employment eligibility verification requirements muddled. Similarly, in instances where an employee comes forward and reveals that they have been using a fake identity and fraudulent documents, and request that employers assist them in providing evidence of their employment history in order to take advantage of the proposed executive action, the employer will be between a rock and a hard place. An employer faces civil and potential criminal liability for hiring undocumented workers (regardless of whether they did it knowingly or unknowingly), and opens itself up to discrimination charges for not assisting these employees or hiring newly documented workers who previously presented fraudulent documents. More importantly, with the increase in worksite inspections that is only expected to continue, employers who do assist employees who come forward could unknowingly be placing themselves on the radar for future worksite enforcement activity.
Again, many of the specific details regarding how things will work are still unknown. And, while President Obama’s planned action will resolve the immigration situation for some people, it is estimated that less than half of the 11 million undocumented foreign nationals living here will qualify. Additionally, President Obama’s executive action will only go so far. Legislation will still be required to address some of the missing pieces in the proposed plan.
In sum, in light of this ever evolving area, individuals and businesses are well advised to seek the advice of counsel before blindly navigating the proposed executive action. Our firm is available to assist you with your immigration needs.
We will continue to monitor the situation and provide our readers updates as more details become available.
For more information, please contact Maria del Carmen Ramos at 813.227.2252 or mramos@slk-law.com.