Employment-Based Immigration Updates
Lately, it seems as though information regarding immigration reform and related issues is everywhere. Even though many of the immigration laws in the United States do not directly affect all employers, it has likely been challenging over the past couple of months to not see headlines and stories about potential changes. As the various branches of our government continue to wrestle with immigration reform, there are certain issues for employers to consider.
• Last fall, President Barack Obama issued several executive directives regarding the operation of our immigration laws and enforcement of the same. Two of the directives were designed to defer the enforcement of our deportation rules and regulations as to individuals who meet certain criteria. Specifically, one directive expanded a previous deferred action policy as to individuals who arrived in this country unlawfully at a very young age (known as Deferred Action for Childhood Arrivals or "DACA"); another directive created a new deferred action policy as to individuals who have resided in this country unlawfully for an extended period of time and now have U.S. citizen or lawful permanent resident children (known as Deferred Action for Parents of Americans and Lawful Permanent Residents or "DAPA"). The impact on employers is that both the DACA and DAPA programs afford qualified individuals the opportunity to apply for employment authorization, which may result in workers approaching employers with new identification documentation that are inconsistent with those provided upon commencement of employment. In these instances, the Department of Homeland Security ("DHS") has issued guidance regarding how employers should handle this issue from a Form I-9 perspective. (Generally stated, employers are to complete a new Form I-9 and retain it along with the original.) Of course, employers may also have internal policies with respect to handling these situations based on the falsification of information at the commencement of employment. If confronted with new documentation from an existing employee, employers should review their internal policies as well as the DHS guidance to determine the appropriate course of action. Notably, although the original DACA program remains available, the DACA expansion and the DAPA program are currently suspended as the result of a temporary injunction issued by a federal court on February 16, 2015.
• Does your company sponsor foreign national workers in H-1B nonimmigrant status? U.S. Citizenship and Immigration Services ("USCIS") recently finalized regulations that will allow spouses of certain of these workers to apply for work authorization effective May 26, 2015. In order to be eligible, individuals must be in H-4 status as the dependant spouse of a an H-1B nonimmigrant who: (i) is the principal beneficiary of an approved Form I-140, Immigrant Petition for Alien Worker; or (ii) has been granted an extension of H-1B status based on the commencement of the employment-based lawful permanent residence process. Eligible H-4 spouses must complete a form, provide supplemental documentation, and pay a filing fee in order to obtain work authorization under the new regulations.