On November 20, 2014, President Obama announced several executive actions to overhaul immigration. In addition to providing millions of undocumented immigrants temporary relief from the threat of removal and access to employment authorization, the Immigration Accountability Executive Actions include provisions that may directly impact employers (see Legal Update, Immigration Executive Actions Announced by President Obama ).

Practical Law asked Eleanor Pelta and Eric S. Bord of Morgan, Lewis & Bockius LLP to outline the implications of the executive actions for employers.

Eleanor and Eric are partners in Morgan, Lewis' Washington DC office. Eleanor assists corporate clients in various industries with the international transfer of key personnel. She is particularly knowledgeable about managing high-volume employee transfers, and assists employers in gaining temporary and permanent visas for all types of business, scientific and executive personnel. Additionally, she advises clients on strategic issues involving movement of staff internationally, including the use of blanket visa programs and qualification of companies as "treaty investor" or "treaty trader" entities. Eric's practice focuses on corporate immigration issues involving the recruitment, hiring, transfer and retention of personnel worldwide. In addition, he advises clients on compliance and risk management for global immigration programs, including Form I-9 and E-Verify rules, immigration investigations and immigration due diligence for corporate transactions.

The President's executive action involved three principal components:

These initiatives vary in their significance for employers.

Immigration enforcement connected to removal of individuals is unlikely to have a significant impact on employers. However, the President did announce a stepped-up focus on worksite enforcement of immigration compliance. This may expand the nature and scope of the worksite investigations employers are already subject to, including increased:

Most attention is focused on the President's decision to grant deferral of deportation to an estimated four million individuals who are currently in the US without authorization. The actions include an expansion of the existing Deferred Action for Childhood Arrivals (DACA) program and a new Deferred Action for Parental Accountability (DAPA) program. Implementation of this policy will likely take several months and faces stiff political opposition. Assuming the policy is implemented, it will add approximately four million individuals to the lawful workforce.

The President's actions for business immigration (temporary work visas and permanent residence for foreign nationals) are limited, largely because of the White House's determination that significant changes require legislation and cannot be accomplished by executive action.

Employers need to know how to treat the employment eligibility documents that are presented by individuals who benefit from the executive action. The Department of Homeland Security (DHS) is expected to issue instructions to employers regarding the employment eligibility verification of individuals who have received work permits under the special deferred action program.

Assuming the new deferral programs follow the current DACA program, once an eligible individual is successfully registered for the new or expanded deferred action program, he will be issued an employment authorization document (EAD) valid for up to three years. The EAD is an acceptable Form I-9 List A document proving identity and employment authorization.

Employers should understand how Section 1 of Form I-9 is properly completed by the employee and how to properly complete Section 2 based on documents presented by the employee. Current deferred action beneficiaries check the fourth box in Section 1 indicating temporary employment eligibility and enter their Alien Registration Number and the date on which their EAD expires. Employers should ensure that they have an effective practice for timely reverifying expiring temporary employment authorization.

In Section 2, employers must accept any document or documents from the list of acceptable documents on the Form I-9. Employers should make a complete copy of the Form I-9 including the list of acceptable documents available to the employee. Employers may not require or specifically request certain documents. A deferred action beneficiary typically presents an EAD.

Employers with existing employees who have already completed a Form I-9 but who come forward with a new identity and EAD should complete a new Form I-9 with the employee's new details and indicate the employee's original hire date in the Section 2 certification. The new Form I-9 should be attached to the old Form I-9. If the employer is enrolled in E-Verify, then the employee should be treated as a new hire for E-Verify purposes.

Of the various employer issues arising from the executive action, this may be among the more vexing and ironic. Employers must distinguish between their Form I-9 obligations to verify identity and employment eligibility and their duty to enforce any existing dishonesty policies in a non-discriminatory manner.

Employers may have current employees who, after receiving their EADs, disclose that they were originally hired based either on an alias, false documents or some other misrepresentation. Assuming that the person now has a valid EAD, the individual is employment-authorized. However, the same individual may have violated the employer's dishonesty policy. As with any company policy, and in particular those that lead to adverse action, employers should apply the policies consistently and without regard to any protected characteristic, including race, national origin and citizenship status. Employers that fail to treat employees equally may be subject to a charge of discrimination.

At present, there is no safe harbor that allows employers to treat deferred action beneficiaries differently from other employees who violate company rules.

Meaningful reform of the business immigration system requires congressional action. There are no active legislative proposals that would significantly impact the key business immigration issues such as H-1B visa availability, per-country backlogs and visas for start-ups and entrepreneurs. Political prospects for any such reform in the near-term are not encouraging.

There are, however, some areas in which the President's executive action may impact business immigration:

The impact of the President's executive action will vary from one employer to another and from one industry to another. Employers should consult experienced immigration and employment counsel to assess the extent to which these changes will impact a particular business. Some companies, particularly those that employ lesser skilled workers or trade workers, may experience a significant impact once affected employees obtain lawful employment eligibility. This could include:

In addition, employers should be aware that those who may benefit from this program in the future are currently not authorized to work. Any employee who discloses his unauthorized status places the employer on notice of that individual's lack of employment authorization. Continued employment of someone whom the employer knows to be unauthorized is unlawful. Employers that are concerned about this scenario should discuss possible strategies with counsel, taking into account the unique facts of each employer's culture, workforce, resources and risks.