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November 24, 2014Client Alert

President Obama’s Executive Action on Immigration: Workforce Implications

On November 20, 2014, President Obama announced that he would take executive action having widespread effects on the U.S. immigration system. Following the announcement, the White House, Department of Homeland Security and Department of Labor released a series of memos and other guidance, providing context to the President’s initiatives. Among the initiatives having the greatest impact on employers and employees are the following:

· Expand the list of science, technology, engineering and mathematics (STEM) degree programs that qualify foreign students and graduates for extended optional practical training (OPT) employment authorization, and extend the maximum time period for STEM students and graduates in OPT beyond the current period of twenty-nine months.

· Finalize the proposed rule allowing employment authorization for the spouses of certain H-1B visa holders who have initiated the green card process.

· Modernize the strict PERM labor certification process, likely by expanding the recruitment methods acceptable under the process and allowing applications to be certified despite nonmaterial errors in the process.

· Modify the requirements for deferred action (relief from deportation), allowing an estimated four to five million additional undocumented individuals to qualify under the program. Moreover, increase employment authorization for those individuals granted deferred action from two years to three years. Employers will need to determine how they will proceed when a current employee presents a new U.S. employment authorization document, suggesting that the individual’s prior documentation was fraudulent. While employers have significant discretion in this situation, they should be sure to consider the employment, immigration, tax and social security law issues relevant to their situation.

· Provide the ability to certain inventors, researchers and founders of start-up enterprises to remain in the United States while they work toward eligibility in the national interest waiver program if they secure substantial U.S. investor financing and/or hold the promise of innovation and U.S. job creation.

· Bring greater consistency and integrity to the L-1B (intra-company transfer) program by clarifying who qualifies as a “specialized knowledge” employee.

· Shed light on the types of job changes (such as promotions to supervisory positions or transitions to related jobs within the same field) that individuals with pending green card applications may accept without jeopardizing the green card application process.

· Clarify the standard for “national interest waivers,” which allow certain individuals with advanced degrees or exceptional ability to obtain green cards without employer sponsorship. 

· Establish an interagency working group to promote the effective enforcement of federal labor, employment and immigration laws. The working group will include the Department of Labor, Department of Homeland Security, Department of Justice, Equal Employment Opportunity Commission and National Labor Relations Board.

In addition to these employment-related measures, the President announced new enforcement priorities focusing on border security, as well as the deportation of suspected terrorists, certain criminals, recent illegal border crossers and individuals who have failed to abide by final removal orders.

The President also directed the Secretaries of State and Homeland Security to work with other federal agencies, as well as private and nonfederal public actors, to develop recommendations for streamlining the legal immigration system, with the goals of reducing government costs and burdens on employers; improving services for applicants; and combating waste, fraud and abuse within the system. These recommendations are due to the President by March 2015. Also by March 2015, the newly-established White House Task Force on New Americans is due to submit to the President an Integration Plan, outlining agency actions to further the civic, economic and linguistic integration of America’s newest immigrants.

Further details related to the President’s initiatives will become available through the release of additional memos and guidance in the coming weeks and months. We will continue to monitor these developments and will update our clients as necessary.

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