HR Management & Compliance

Employers await effects of Executive Order on immigration

While political wrangling over President Barack Obama’s newest Executive Order rages, employers need to understand the impact the immigration order will have on their workplaces.

Obama announced what he’s calling the Immigration Accountability Executive Actions in an address November 20. A fact sheet from the White House says the order will “crack down on illegal immigration at the border, prioritize deporting felons not families, and require certain undocumented immigrants to pass a criminal background check and pay their fair share of taxes as they register to temporarily stay in the U.S. without fear of deportation.”

Obama’s plan includes three main elements: (1) increased border security, (2) an emphasis on deporting people deemed a threat to national security and public safety, such as suspected terrorists, violent criminals, gang members, and recent border crossers, and (3) an expansion of a program allowing undocumented immigrants to temporarily stay in the United States if they register, pass background checks, and pay taxes.

Part of the plan gives temporary relief from deportation to parents of U.S. citizens and permanent residents who have been in the country for at least five years. It also extends a program that allows undocumented migrants brought into the country as children to stay in the United States.

Even as he announced his executive actions, Obama urged Congress to “finish the job” by passing a bill like the one that passed the Senate in June 2013. That effort failed in the House.

Although the executive action is temporary and more limited than the 2013 Senate bill, it does address issues important to employers. “By providing individuals with an opportunity to come out of the shadows and work legally, we will also help crack down on companies who hired undocumented workers, which undermines the wages of all workers, and ensure that individuals are playing by the rules and paying their fair share of taxes,” the White House fact sheet says.

Elaine Young, an attorney with the Kirton McConkie law firm in Salt Lake City, Utah, follows immigration matters closely and was encouraged by the 2013 Senate passage of a more comprehensive immigration reform bill. But she doesn’t expect the new executive actions to provide the kind of solutions employers could have enjoyed if the bill had become law.

“That bill truly represented an overhaul of the immigration system, including ways of allocating green cards for both family-based and employment-based categories, as well as increases in H-1B visas and entirely new visa types for temporary workers in the industries that now employ most undocumented workers,” Young says.

Despite its limitations, Obama’s latest action may bring at least limited good news for employers, Young says. “Any kind of expansion of eligibility for green cards or work permits would benefit employers in those industries that traditionally employ undocumented workers, like hospitality, construction, and agriculture,” she says.

Christine D. Mehfoud, a director with the Spotts Fain law firm in Richmond, Virginia, says the executive order’s benefits to employers will be limited but will have an effect.

“Employers who have employees in their workforce who are affected by the expanded deferred action may have to figure out how to handle those employees,” she says. “For example, employers may have an increased number of employees presenting with new identities and wanting to change their name, Social Security number, etc. on file with the employer. This has become a tricky situation for many employers, especially those who have a policy of disciplining employees who provide false information to the employer.”

Mehfoud, who wrote about the new Executive Order today for her law firm’s Lawful Thoughts blog, reminds employers–and employees–that none of the provisions has been enacted yet.  She points out that the U.S. Citizenship and Immigration Services (USCIS) now includes the following notice on its website: “Important notice: These initiatives have not yet been implemented, and USCIS is not accepting any requests or applications at this time. Beware of anyone who offers to help you submit an application or a request for any of these actions before they are available.”

It’s not a foregone conclusion that Obama’s action will hold up since Republicans in Congress are claiming the action exceeds his authority. Republican House Speaker John Boehner has vowed to fight Obama’s action and has accused him of acting unlawfully. “President Obama has cemented his legacy of lawlessness and squandered what little credibility he had left,” Boehner said.