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Awaiting the President's Executive Action on Immigration By Dawn Lurie

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I am anxiously awaiting the details of the President's immigration executive action expected to be unveiled on Thursday evening. The President just announced he will address the nation on November 20, 2014 at 8pm laying out the details of his plan to fix the “broken” immigration system. President Obama is also scheduled to visit Las Vegas’ Del Sol High School on Friday and talk more about his plan. Press Secretary Josh Earnest briefed the press Wednesday afternoon and noted the Administration’s desire to continue conversations with stakeholders. He also announced the President will be hosting a dinner, Wednesday night, for eighteen Democratic lawmakers where I suspect he will lay out the legal basis and historical precedent for his actions.

Many remain hopeful that the action will address what has been characterized as an untenable situation for millions of undocumented immigrants. In fact, all of Washington is getting ready for this announcement, including the Republicans who are already threatening to impede any Presidential action by imposing funding restrictions in the spending bill.

After spending twenty–four years defending employers facing worksite enforcement actions and immigration compliance investigations, criminal and administrative, I remain hopeful that the President will do what Congress has not been able to. I have seen what it takes to pick the veggies that end up on our kitchen tables, experienced the heat the pallet workers and roofers endure, been in the middle of more union production shutdowns during a Form I-9 audit than I care to remember and can’t forget the work the cleaners do on the night shift at the meat packing plants. I have also witnessed technology and other types of companies lose the best and brightest U.S. educated students to foreign competitors because the U.S. did not “have enough visas” to allow them to work in the U.S. I have glimpsed into the shadows the President refers to. Simply put, our system is broken, that is a fact, regardless of what side of the aisle you sit on.

Work permits could be granted to an excess of five million people but NO health benefits or government subsidiaries will be available under the Affordable Care Act according to the NY Times. If accurate, this will be one of the many topics employers will need to grapple with as the realities of this executive action play out. Other issues for employers include how to deal with existing employees coming forward with new identities or questions about use of the program before work authorization is actually issued.

It remains to be seen exactly how far this reform action will go and if it will truly be "big and bold" as FWD.us Todd Schulte requested. It is possible the order could provide relief to the parents of Dreamers who benefited from DACA - Deferred Action for Childhood Arrivals in 2012 and further relief to those with DACA benefits. In fact, it could go even further and include the parents of U.S. citizens and permanent residents (together an estimated 4 million people). White House officials have stated the expected criteria will include the length of time individuals have been in the U.S. as well as family ties. It should be noted whether or not to include the parents of the DACA population is somewhat of a hot button and understood to be an issue by senior administration officials.

It also remains to be seen if the President will address any other immigration problems. For example we have a very long wait to immigrate legally to the United States in many visa categories. While the President cannot increase the number of family and employment-based immigrant visas without legislation, he can change the way the number of visas are counted for dependents against the worldwide visa quota. He could count only one number per family instead of counting each member of the family against the quota. This would alleviate the expected delays in the EB-5 program as well as others in different visa categories. The action could also recapture visa immigrant visa numbers that have been lost over the years, providing the opportunity for more people waiting in line to immigrate faster. According to Julia Preston’s NY Times article the action will also “provide new guidance for the nation’s immigration enforcement agents and revamp the legal immigration system to provide more opportunities for high-tech workers from other countries”. Finally the NYT has a Infographic worth viewing that lays out the numbers that could be affected President Obama’s immigration plan.

Addressing this issue as broadly as possible will allow law enforcement, including Immigration and Customs Enforcement (ICE), to focus on deporting convicted criminals, those that pose national security risks and targeting egregious employers who mistreat workers, or are involved in trafficking, harboring visa and/or identification document fraud, money laundering, etc. While President Obama is clearly willing to do this alone, it is still possible Congress could work together to pass a comprehensive bill in 2015. Wishful thinking?

Join the discussion as Dawn Lurie and Julie Myers Wood host a Town Hall Meeting on the Immigration Executive Action: What Does This Mean for Employers? on Friday November 21, 2014 at 9am. Contact Kristin Jones at kwjones@polsinelli.com for details.

The comments and opinions expressed on this site are of the individual author and may not reflect the opinions of her firm or any individual attorney.


AUTHOR BIO

Dawn M. Lurie is recognized in the legal community as a sophisticated and forward thinking immigration compliance authority and EB-5 investment strategist. She focuses on visa, workforce, and global mobility issues. Dawn is proud to be considered a trusted partner to corporate clients and is relied on for her ability to spot impending government enforcement trends. Her deftness in balancing business necessity with regulatory reality is also highly valued. When advising clients, Dawn presents creative, yet compliant, solutions and identifies issues long before they become problematic.

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