The President’s Executive Actions for Employers and Employees

Businesses and professionals have asked us how the President’s executive actions may impact them. The language and memorandums are very promising.  However, we will have to wait and see how things play out. Many of the particulars still have to make it through the Federal Register publication process, which includes agency drafting of rules and required public comment periods.

Things to know:

1. Resources

Probably the best introductory resource is the Department of Homeland Security’s dedicated page, which references a number of different memorandums and actions.  For the DHS memo which addresses changes for employers and high skilled workers, visit here. The White House’s website and dedicated webpage is also a good resource.  The American Immigration Council has published a comprehensive summary of the President’s actions.

2. The Law and Politics of the Executive Action

Seventeen states, led by the Texas Attorney General, filed a lawsuit last week to stop the President’s actions, based on claims that his actions are unconstitutional, as an overreach of his authority. Our take, in a nutshell, is the President’s actions are constitutional, due to the existing broad delegation of authority in the Immigration and Nationality Act.  If Congress wants to change things, it will need to pass a law.  Some judges may disagree, at least in part, and some of the President’s actions are edgier than others, and so we’ll wait and see.

The House of Representatives passed a bill last week, by a small majority, voting on partisan lines, which found the actions unconstitutional. It is unlikely the bill will go anywhere. Even if it passed the Senate, the President presumably would veto the bill.

3. Timing

It is going to take a while for the actions to take effect. In many cases, federal regulations and processes have to be drafted, and published in the Federal Register first for comment. For less-specific orders, such as where the President ordered agencies to consult to streamline immigration processing measures, some activity may be seen after the turn of the year. Of course, it’s possible the litigation may slow things down.

Some of the proposals to help high skilled workers have been in the making for a while, such as H-4 work authorization for spouses of persons with approved I-140s. That should be coming soon, and would likely be of interest to some.

In 2012, the Deferred Action for Childhood Action program was announced in June, and the agency began accepting applications two months later. It will be interesting to see how fast the affirmative application processes can be implemented here.

4. Specific measures Impacting Businesses

a. Perhaps the most noteworthy possible change related to business is the possibility of “preregistration” for those who have an approved I-140 but don’t have a current priority date. This has been mentioned in stakeholder briefings from the White House, but hasn’t explicitly made it into the press releases or other announcements. This would allow a process to apply for an employment authorization/travel document. It is possible this will be written into the regulations, but we’ll have to wait and see. It’s also possible the proposal needs to be further vetted before release, as the statute on adjustment of status is relatively clear. Such an action could impact many persons who are stuck in long waits, and could reflect the White House statements concerning relief to 400,000 workers.

b. Guidance is likely to be issued that will allow a more liberal view of portability for position same or similar position changes, when persons switch positions with after having an immigrant visa petition. This would provide more confidence to employers and beneficiaries in taking promotions and other natural career changes.

c. The President has asked the agencies involved in issuing visas to come up with a plan to coordinate between them to streamline the application process (e.g. single data entry, background checks). The expectation is measures will also speed up the process.

d. The agencies have been directed to take measures to favor entrepreneurs, such as greater use of the National Interest Waiver provisions for job-creators.

e. The PERM labor certification system is supposed to be reevaluated and amended. This sounds promising, but it could take a long time to have impact, due to federal regulation and internal system processes. It has been asked that the process include harmless error provisions, which would at least cover clerical errors. Ideally, we’ll see an expanded use of Schedule A. For instance, we have lobbied for use of Schedule A with regard to physicians practicing in underserved areas.

f. There may be a number of revisions to Optional Practical Training (OPT) for foreign students. The DHS Secretary has directed the agency to expand the list of STEM degree programs eligible for automatic OPT extensions of 29 months for certain employers (which would include Providence). That period may be lengthened too, though no alternative length of time has been said. There also may need to be closer nexus between degree and training than which has been required to date. There are also indications of labor market protections being implemented related to OPT usage.

These are just some of the highlights. There are other reforms which may come in relation to the use of parole, military enlistment, and other areas. Of course, the centerpiece of the proposal is the Deferred Action programs for parents of U.S. citizens and lawful permanent residents, and the expansion of the rules for the Deferred Action for Childhood Arrivals. Experts say these latter two proposals could create work authorization for roughly 5 million persons.