Whether the president’s recent series of immigration-related executive actions will survive potential legal challenges and congressional action remains to be seen. For now, set aside your political views (while I love a good political debate, this space is for practical business implications), and let’s focus on how the executive actions will affect employers. 
What does the executive action include?
1. Additional resources for law enforcement. Money, money, money. The executive action calls for additional resources to be dedicated for border security. The U.S. Department of Homeland Security (DHS) will create three joint task forces that will include participants from the U.S. Coast Guard (USCG), U.S. Customs and Border Protection (CBP), U.S. Immigration and Customs Enforcement (ICE), and U.S. Citizenship and Immigration Services (USCIS). The task forces will address:
- The southern maritime border and approaches;
- The southern land border and the West Coast; and
- Investigations in support of the geographic task forces.
The DHS will also create a Priority Enforcement Program to work with local and state authorities on detention and removal priorities and increase pay for ICE agents.
2. Tweaks to make it easier and faster for certain high-skilled immigrants, students, and entrepreneurs to remain in the United States. The executive action outlines additional flexibility for workers with approved employment-based green card petitions, including allowing such workers the flexibility to accept promotions and transition to related positions within their field without fear that it will void their immigrant visa petition. The executive action also proposes expanding a company’s ability to employ certain workers while they are waiting for their green cards.
Finally, the executive action expands options for foreign students who have graduated and are awaiting work visas. Specifically, USCIS will review and expand the degrees available for optional practical training (OPT) and extend the length of time students in the science, technology, engineering, and math (STEM) fields can work after graduation.
Expanding the number of legal visas for high-skilled and low-skilled workers is not covered by the executive action.
3. Allows almost five million illegal immigrants to stay and work in the United States. The most controversial part of the executive action extends deferred action to almost five million (of the estimated 11 million) illegal immigrants already in the United States, allowing them the opportunity to stay and work here temporarily. Specifically, to qualify for the expanded deferred action, individuals must:
- Have been in the United States for at least five years;
- Have a child, as of November 20, 2014, who is a U.S. citizen or lawful permanent resident;
- Pass a background check;
- Pay application fees; and
- Not be a removal priority under the new policy (i.e., not be a criminal).
The executive action also expands the eligibility for deferred action for children (often called “Dreamers”), which is expected to affect an additional 270,000 people. The relief (and work authorization) has been extended to three years instead of two.
How does the executive action affect employers?
For now, the executive action has no impact on employers. None of the provisions have been enacted yet. In fact, USCIS has posted 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.
Once the executive action becomes new regulations or updated policy memos, here’s what employers should expect:
1. Increased enforcement of immigration laws. While most of the focus will be on border security, it is not a leap to expect an increase in worksite inspections and enforcement budgets. As the focus on identifying and deporting criminals increases, employers that happen to have criminals in their workforce will likely experience increased exposure for review of their immigration compliance programs.
2. Slight changes to work authorization for high-skilled immigrants, students, and entrepreneurs. Unfortunately, the executive action includes only minor benefits for businesses that have been seeking more significant reform addressing visas for foreign workers, and it falls short of many of the requests made by businesses. For example, the plan does not make unused visas from past years available.
The provisions applicable to high-skilled immigrants, students, and entrepreneurs will have very little impact on most employers. Companies that routinely hire students on F-1 visas or sponsor employees for green cards may find minimal increased flexibility and options in these areas, but overall, employers waiting for significant expansion of their ability to hire foreign high-skilled or low-skilled workers will have to continue waiting.
3. An increased number of employees authorized to work and some movement in the workforce. Providing work authorization to almost five million workers will certainly have an impact on employers. However, before that happens, affected employees will have to apply for deferred action and work authorization. That poses a challenge: If you were in the United States illegally and had managed to go undetected for more than five years, would you come out of the shadows and take this deal?
First, the offer provides permission to stay and work for only three years. Although it is highly unlikely that undocumented people who take the deal will be rounded up and deported at the end of the three-year period, there is no guarantee that it will not happen. Second, executive action is only temporary. Any future president or Congress can act to reverse or revise the executive action. Is coming out of the shadows and into the spotlight worth the risk?
Still, many undocumented workers will take the deal. Employers with illegal immigrants in their workforce will have to respond to employees who want to change their identity and present new documents for identity and work authorization verification. That situation poses a significant challenge for employers.
An employer with a policy prohibiting employees from providing false information to the company will have to tread carefully so it doesn’t implement the policy in a discriminatory manner. If the employer allows an employee to change his identity and continue working, it must consider its obligations to report inaccurate filings with various state and federal government agencies, including the IRS, the Social Security Administration (SSA), and state workers’ compensation commissions. The situation also presents challenges for the administration of benefits such as vacation accrual based on seniority, health insurance, and retirement plans.
Deferred action and work authorization for almost five million workers are also likely to initiate movement of workers from low-paying, less- desirable jobs to higher-paying jobs with better conditions. For some industries, especially the food and agricultural industries, this movement may result in an increase in the wages required to obtain workers necessary to fill the workforce. It will also likely have an impact on recruiting and HR needs over the next year or two. For other industries, the movement of workers and the opening up of almost five million potential new jobs may ease recruiting challenges.
Finally, deferred action and the increase in the number of employees with work authorization will affect employers differently based on their state(s) of operation. For example, it is expected that 40 to 47 percent of the illegal immigrant population in Texas will be covered by the expanded deferred action, but only 23 to 30 percent of the illegal immigrant population in Virginia will be covered.
Bottom line
Employers are well advised to discuss the impact of the executive actions on their immigration compliance and hiring programs with experienced immigration counsel. Plan now for the impact on hiring and future employment decisions.
Christine D. Mehfoud is an attorney with Spotts Fain in the firm’s Richmond, Virginia, office. She may be contacted at cmehfoud@spottsfain.com.