Impact of Obama’s Immigration Action on Employers


potus_streamlining_legal_immigration_316x159Will President Obama’s recently announced plan to begin executive actions on immigration help or hurt U.S. employers? The short answer is that it is too soon to say.

The more complete answer is that there will probably be winners and losers among both employers and their employees as details of his stance become clear.

1.  What Executive Actions Might Do, Once Regulations Are Issued

President Obama’s executive order might provide relief on L-1B visas, which I have written about before (see here and here). USCIS will finally provide guidance on the definition of “specialized knowledge” for the adjudication of L-1B intra-company transfer visas.

Some immigrant petitions may become more portable, if USCIS clarifies the “same or similar occupational classification” standard and allows petitions to remain valid even if the individual changes jobs or employers. Currently, new green card applications are required if an employee changes employers or even takes a new position with the same employer. But how broad portability will be permitted remains to be seen.

More foreign students may become eligible for Optional Practical Training (OPT) employment authorization, so that these students with bachelor’s degrees in science, technology, engineering, or math (STEM) fields and who are pursuing other graduate degrees (such as an MBA) can continue to use the OPT authorization.

More National Interest Waivers may be available so immigrants who are entrepreneurs, researchers, inventors, and founders of companies can obtain green cards. These waivers may become available not only for self-employed entrepreneurs but also for key foreign employees of larger companies that provide innovation, job creation, and economic benefits.

In addition, some spouses of H-1B workers may have an easier time of obtaining work authorizations, although we don’t know yet whether this will be limited to spouses of all H-1B workers or only those who have reached a certain stage in the green card process.

2.  What Executive Actions Can’t Do

Certainly, executive actions cannot provide employers what they want in terms of an increased number of H1-B visas. Nor can executive action create an agricultural worker program or any other new temporary worker program. These require acts of Congress.

The President also cannot speed up the process for obtaining permanent residency, although some aspects of his recent proposal might allow for more flexibility during the lengthy process.

The employment verification rules are almost certain to become more complicated. We will have to wait until the government issues instructions on how individuals will get their work permits and on how employers must comply with verifying the employment eligibility those who receive these work permits. These permits are temporary in nature, so employers are likely to have to follow up when they expire.

3.  Conclusion

For these reasons, there remains a substantial need for legislative action on comprehensive immigration reform. The only way we will really improve our patchwork of immigration laws is for Republicans and Democrats in Congress to negotiate a workable compromise.

From employers’ perspectives, increased immigration will improve the flexibility of the labor market. At the same time, employers will remain responsible for reasonable verification of workers’ employment status, but employers should not be the primary enforcers of our immigration laws.

In summary, we won’t really know whether President Obama’s executive actions help or hurt employers—or, more accurately, which employers are helped and which are hurt—until we see proposed regulations. Until then, employers should remain cautious and continue complying with existing employment verification rules.

What do you think should change in our immigration laws?

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