How Obama’s Immigration Executive Action Will Affect Your Businesses

by Jerome Grzeca

After President Obama’s immigration executive action announcement last week, companies across the country are wondering how their hiring practices will be impacted in the short and long term. While the turbulent political seas get calmer in the weeks to come, employers should immediately review their internal policies with respect to the employment eligibility verification process.

Frustrated by the legislature’s unwillingness to pass comprehensive immigration reform, President Obama announced last week that he was taking Executive Action to update our country’s immigration policies in various areas. The announced changes will take effect in the next several months and the details will continue to unravel on a daily basis. This Executive Action will have a major impact on U.S. employers, creating more opportunities for some highly skilled immigrants and forcing other businesses to reevaluate their employment policies.

Work Authorization for Undocumented Immigrants

The most sweeping immigration policy change is for individuals who have been in the country for over five years with United States citizen or Lawful Permanent Resident children. They will be allowed to obtain a work permit if they meet certain criteria under a program called Deferred Action for Parents (DAP). This will help shield from deportation up to 5 million undocumented individuals in the United States and allow them to obtain Social Security numbers and, at least in the state of Wisconsin, driver’s licenses. In addition, the current Deferred Action for Childhood Arrivals (DACA) program will be expanded to remove the upper age limitation (which was previously 31-years-old), allowing more adults to qualify.

Some employers are likely to encounter a wave of workers, who previously identified themselves as work authorized, suddenly indicating that they were undocumented and are now applying or have applied for a deferred action program. These workers will want to present new documents to prove their identity and work eligibility. If an employer decides to forgive one such instance and accept the newly presented documents, this will set a precedent for the rest of these cases.

Of course, employers must complete Form I-9 to verify the employment authorization of all new hires. But some employees give false information and present fraudulent documents for I-9 purposes, and this may come to light if workers, who get valid work documents through this Executive Action, want to update or correct their files after receiving their work permits. Businesses should be reviewing their employment policies before they are faced with such predicament, so they can act consistently if they discover that an employee has previously lied on their employment application or has presented fraudulent documents.

Furthermore, since employers are prohibited from employing (or continuing to employ) a worker who they know is not authorized to work in the United States, companies cannot continue to employ workers who indicate that they are undocumented, even if they are applying or intend to apply for a deferred action program. Until they have their work permit in hand, companies must terminate the employment of any individual found to lack work authorization. However, the company can probably hire the employee back once he or she receives their work permit. Again, businesses should review their internal policies and contact an attorney to navigate complex situations.

Other Business Immigration Changes

Several other positive and long overdue immigration changes are also being rolled out, many of which will affect employment-based petitions. The changes to be implemented by the President that will help businesses include:

  • Helping individuals who are waiting for an employment-based green card to get work and travel documents for themselves and their family members while they are caught in backlogs;
  • Reducing the wait time for employment-based green cards;
  • Expanding the length of time that new graduates can work pursuant to their student status if they are in a STEM (science, technology, engineering or mathematics) field;
  • Updating and clarifying multiple employment-based processes; and,
  • Creating new options for investors and entrepreneurs.