Immigration Executive Actions

January 5, 2015

How Recent Executive Orders Will Affect Employers and Their Foreign National Employees

Since President Obama announced executive orders relating to immigration reform, Lewis Rice has received numerous inquiries from companies and individuals asking about the impact of the executive action and when the announced changes might go into effect. Although most of the publicity surrounding the executive orders relates to immigration benefits for undocumented aliens, an important aspect of President Obama's executive action concerns employment-based immigration changes that likely will benefit employers and their foreign national employees. Also, employers may soon confront complicated issues regarding the status of unauthorized workers. These issues are explored below.

Key Employment-based Aspects of the Executive Orders

First, President Obama announced that the process for foreign entrepreneurs to enter the United States will be simplified. These changes are expected to apply to certain foreign national inventors, researchers, and founders of startup enterprises, who do not presently have an easy path into the United States, if they achieve a certain level (presently unspecified) of investment funding. To date, there is no time frame for the implementation of this proposal.

Second, the executive orders included a proposal to reduce the large backlog of permanent immigrant visas ("green cards"). Currently, many individuals with approved employment-based immigrant petitions must wait to file for adjustment of status (Form I-485) until they get to the proverbial front of the green card line. This process often exceeds five years. The recent proposal would allow certain individuals with approved employment-based petitions, who were not yet at the front of the line, to file Form I-485s. Doing so would allow such individuals (and their families) to apply for work and travel authorization while waiting for their green card(s) to issue. This change will require regulatory action, but, there is no estimate as to when that might occur.

Third, another proposal set forth in the executive action would permit certain spouses of individuals with H-1B status (H-4 spouses) to work in the United States. This proposal represents a welcome change from current law under which such spouses are not permitted to work. A final regulation implementing this change is expected to be published as early as January 2015.

Fourth, the L-1B visa, which allows a U.S. employer to transfer an employee from an affiliated foreign office to one of its U.S. offices, requires that employees have "specialized knowledge" of the company's products or processes. The executive order calls for updated guidance clarifying what constitutes "specialized knowledge," which we expect to be more employer-friendly and to facilitate wider availability of the L-1B program. This change is expected to arise via a policy memorandum. However, there is no estimate as to when that might occur.

Fifth, the executive action on immigration reform includes another proposal that will result in more job flexibility for foreigners. If a worker has filed for adjustment of status based on employment, he or she may seek other employment based on that filing only if the job is in the "same or similar" occupational classification as their original job. Currently, there is uncertainty as to what constitutes a "same or similar" occupation, which makes it difficult for foreign workers to change jobs without having to restart the green card process. The USCIS is expected to issue a policy memorandum providing guidance on what constitutes a "same or similar" job, but there is no estimate as to when that guidance might issue.

Sixth, President Obama also announced that the United States intends to expand the duration of and eligibility for the STEM optional practical training period for F-1 students, thus allowing additional, and longer, work options for many foreign students after they graduate from U.S. universities. The implementation of this change will require regulatory action, and the first rule is expected to issue in June 2015.

Despite the announced expanded benefits for foreign workers and their employers, until the relevant federal agencies implement the changes called for in the executive orders, no employers or employees will benefit from the proposed changes. To that end, please check back periodically for updates as the government rolls out guidance and regulations that implement these anticipated reforms.

Impact of Lawsuits against the Executive Orders

There also have been reports of various lawsuits claiming that the executive orders are unconstitutional. For most employers, such lawsuits are a non-issue because such judicial attacks concern the provisions in the executive orders that relate to undocumented aliens, not the proposed employment-based changes outlined above. Nevertheless, if the legal challenges fail, employers still may be affected by changes regarding the status of undocumented aliens, as explained further below.

Impact of Changes for Undocumented Aliens

The most publicized aspect of the executive orders concerns benefits for undocumented aliens. Although employers would not be directly involved in the process for legalizing undocumented aliens, such benefits, if implemented, may affect the workplace.

Specifically, it is expected that, as undocumented aliens pursue benefits per the executive orders, workers may provide their employers with different documentation to establish new work authorization or may ask their employer for work verification as part of their effort to become legal. In the process of seeking such benefits, undocumented workers may reveal to their employers that they are currently undocumented or have been using false work authorization documents. Thus, there is a very real possibility that many workers will reveal their true undocumented status in the upcoming months.

Such situations can raise complex legal issues for an employer. Although a worker's admissions may be made with good intentions, employers have a legal obligation to terminate workers who do not have current work authorization. Likewise, if a worker is now legal, but admits past fraud, whether the employee need be disciplined is within the employer's discretion. However, failure to follow a consistent policy with respect to any particular worker may raise discrimination concerns—so too would excusing such an admission for a foreign worker, but terminating others for similar infractions, such as lying on a job application.