On November 20-21, 2014 President Obama announced “executive action” on immigration policy. These proposals were instantaneously controversial; businesses are left to ask – what does all of this mean to our company and our employees? – what is an employer to do?
Our advice: take a deep breath, do what you have always been doing, and proceed slowly and carefully. The Executive branch of government may develop its own enforcement priorities), but it cannot write or fundamentally change existing laws. That is the job of Congress, which is why, when all is said and done, true and meaningful immigration reform will only take place when Congress and the President reach a legislative consensus.
So first, businesses should do what they have always been doing – nothing in any form of so-called “amnesty” relieves employers from the responsibility to properly maintain I-9s or comply with other types of immigration-related employment laws. In fact, the current administration has made it a priority to investigate immigration compliance in the workplace. Therefore, the most important steps any employer can take are to identify and implement “best practices”, and continue to maintain your compliance activities as you always have.
What about the plethora of news article from seemingly credible sources, which discuss a new policy or procedure? What about the employee who tells you about the “new law”, which changes everything and gives work authorization to entirely new classes of people? Not so fast!
Immigration law is exceedingly complex. We all know the phrase “the devil is in the details” and that is particularly true in this case. Details matter a lot and right now, there are very few concrete details, just a lot of policy statements. Moreover, the change of one small fact – e.g. date of birth, date of entry to the United States, date of filing this paper or that, country of origin, etc. – can change everything. The presence or absence of what otherwise seems to be just one trivial factor can make a world of difference.
As is often the case, those who need the laws’ help the most are those who do not have effective access to resources, finance-wise and legal assistance-wise. It is because of this sector of the population that a new cottage industry of those who exploit the desperate situations of others was spawned.
So, as an employer, you may likely confront a situation wherein one of your employees shows up with a piece of paper, or set of papers, from a “notario” or “legal assistant” and simply asks for your signature. Proceed with great caution, particularly when it is a loyal, valued and hard-working employee who seeks that help. Even if you are not asked to pay for any services, if given a stack of papers to sign, take some time to check to see who drafted the paperwork.
• Are the drafters reputable immigration lawyers or accredited individuals from a social services agency or charity?
• What does the paperwork obligate you to do? Realize that if you sign anything, you should expect your statements to be investigated and verified. You may one day receive a phone call from an immigration officer, or even a personal visit. When you sign under the penalty of perjury, there may be criminal sanctions if what you are saying is untrue, even if the untruth is inadvertent. If the individual prepared the documents improperly, you might find yourself in a middle of a mess that could put the company at risk, as well as you personally.
• So be very careful, and know that even if the person who is presenting you with the paperwork claims he or she is a lawyer, you are wise to not be rushed to sign and, further, may and should consult your own attorney for advice if you have any doubts.
It is reasonable to expect there may be lawsuits challenging Mr. Obama’s actions, and this may delay, alter, or even scuttle some of the President’s proposals. None of this is a done deal – so much has yet to be worked out – through the courts and through negotiations, and ultimately with new laws which have yet to be written, much less enacted. For now, here is what we do know about provisions of the executive actions which specifically address employment based immigration:
1. Employment Authorization for H-4 visa dependents – within the next few months. U.S. Citizenship and Immigration Services will likely publish new regulations that will authorize employment for the spouses of H-1B visa holders that have approved immigrant visa petitions but cannot for now complete their applications for permanent resident status due to backlogs in the immigrant visa quota system;
2. Extended Optional Practical Training (OPT) for foreign students and graduates from U.S. universities will be expanded to cover additional degree programs and the duration of such OPT employment authorization for STEM students and graduates will be extended as well. These changes will require new regulations, which will take at least a few months to be finalized;
3. Modernizing the Employment Based Immigrant U.S. System: The President has directed U.S. Citizenship and Immigration Services and the U.S. Department of State to make changes to the employment based immigrant visa system. Few details are yet available regarding the specific changes to be made or the timing of those changes. It is believed that those individuals with approved immigrant visa petitions who cannot now file applications for adjustment of status due to backlogs in the employment based immigrant visa quota system will be granted the employment and travel related benefits of a pending application for adjustment of status;
4. Promoting Research and Development in the United States – Changes have been proposed to benefit investors, researchers and founders of start-up companies who have been awarded substantial “U.S. investor financing” or who “otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting edge technologies.” There are no details yet regarding these changes or the relevant timing;
5. Modernizing the PERM program for labor certification – no specific changes have yet been identified, nor are there any time frames yet for such changes.
In conclusion, employers should not assume any of the executive actions announced to date dramatically change their situation or that of the vast majority of their employees.
It is true that Mr. Obama may direct how immigration enforcement is prioritized, but otherwise, not much has changed – yet! Employers should continue their existing hiring and termination best practices, continue to rely on the advice of their legal counsel, their trade associations and human resources best practices, and otherwise generally proceed cautiously. While it is important to keep abreast of current news reports, employers would be wise to exercise the utmost in caution because bad information is sprouting up everywhere and will continue to do so.