On November 20, 2014, President Obama announced several widely discussed executive actions to expand deportation relief to certain unauthorized immigrants in the United States. Among other measures, the executive actions will expand eligibility for minors and parents of US citizens who entered the US by January 1, 2010 to obtain employment authorization and remain in the US under color of law for three years. According to the Pew Center, the presidential executive order will expand deportation relief to 48 percent of the total unauthorized immigrant population in the United States and will cover people from countries all around the world. 

Some potential complications

These actions may bring complications for employers. For instance, the US Department of Homeland Security, US Citizenship and Immigration Services (USCIS) announced that these initiatives have not yet been implemented. It warned that some initiatives will be implemented over the next several months and some will take even longer. See USCIS: Executive Actions on Immigration.

In the meantime, if a worker notifies his employer that he is currently an unauthorized immigrant who intends to apply for a work authorization under the executive order, the employer has an obligation under federal law (and often state law) to terminate the worker. Only immigrants who currently hold valid work authorizations may lawfully work in the US.

Some good news for employers

While these executive actions could create issues for employers, the US government also promises to provide helpful guidance to employers seeking to obtain visas for employees. The executive actions direct the Department of State, the Department of Labor and the USCIS and US Customs and Border Protection to develop recommendations to modernize, streamline, improve and maximize the use of the visa processing system. This includes:

  • continuing efforts by USCIS and the Department of State to exhaust all immigrant visas each fiscal year;
  • developing a simplified Visa Bulletin system to allocate immigrant visas each month;
  • expanding access to green card portability, allowing additional foreign workers who are subject to immigrant visa backlogs to change jobs or employers after receiving an approved I-140 petition;
  • providing clarity on adjustment portability to remove unnecessary restrictions on natural career progression and general job mobility to provide relief to workers facing lengthy adjustment delays;
  • clarifying the types of job changes that qualify for green card portability;
  • allowing individuals awaiting their “priority date,” for a green card, to file the last step of the green card process (the I-485) and obtain interim benefits (i.e., employment authorization documents) while awaiting a green card;
  • finalizing rules to provide work authorization to the spouses of certain H-1B visa holders who are on the path to lawful permanent resident status; and
  • clarifying guidance on L-1 visas, which allow American companies to transfer managerial employees or workers with specialized knowledge from foreign offices to US offices via L-1A and L-1B visas, respectively.

As a reminder, the implementation of these actions and others is likely to take several months and possibly more than a year. For more detailed information about the executive actions on immigration reform, see the Norton Rose Fulbright legal update by our lawyers, Cindy Kang Ansbach and Jeff Ghouse.