Tag: executive action

Implications of Executive Action for Family Unity and Retention of DACA Talent for Employers and Individuals

Highlights

  • On June 18, the executive branch announced one of the most significant executive actions affecting U.S. immigration since establishing the Deferred Action for Childhood Arrivals (DACA) program in 2012
  • The family unity action would allow many undocumented spouses of U.S. citizens to obtain green cards in the U.S. without needing to depart the country
  • The DACA provisions would make it easier for some DACA recipients to qualify for a work visa

On June 18, 2024, the Biden administration announced one of the most significant executive actions promoting family unity and streamlining the process for Deferred Action for Childhood Arrivals (DACA) recipients seeking to transition to work visas using existing legal authority.

Family Unity and Parole in Place for the Undocumented Spouses of U.S. Citizens

The executive actions initiate a process that will allow certain non-citizen spouses of U.S. citizens to apply for their green cards without leaving the U.S. Currently, a U.S. citizen can sponsor their non-citizen, foreign-born spouse for permanent residency by filing an I-130 immigration petition for the individual, regardless of their immigration status. Immigrant visas are available in this category without backlogs, unlike many other categories. However, undocumented spouses who didn’t enter the U.S. legally typically don’t qualify under current law to complete the permanent residency process in the U.S. In these situations, the spouse typically must depart from the U.S. to complete the process at a U.S. embassy or consulate abroad, thereby triggering a 10-year penalty to lawful readmission under immigration law unless waived due to hardship to a qualifying relative. This process is lengthy, uncertain and expensive, discouraging many of these families from pursuing these steps.

To provide relief, the Biden administration proposes to use the humanitarian parole authority of the executive branch to place qualifying individuals in a legal “parole,” which would then allow them to apply for adjustment of status. Approximately half a million spouses and stepchildren of U.S. citizens in “mixed-status” households could benefit from this change, if implemented.

The availability of this program, also known as Parole in Place, for qualifying non-citizen spouses will be formalized through a rule-making process and publication in the Federal Register. However, the subsequent announcement by the Department of Homeland Security (DHS) on June 18 included the following specifics for individuals to qualify:

  • Continuously resided in the U.S. for 10 years since June 17, 2014
  • Physically present in the U.S. on June 17, 2024
  • Legally married to a U.S. citizen as of June 17, 2024
  • Entered the U.S. without admission or parole and do not currently hold any lawful immigrant or nonimmigrant status
  • Have not been convicted of any disqualifying criminal offense
  • Do not pose a threat to national security or public safety
  • Merits a favorable exercise of discretion

This program would also include non-citizen children of these spouses (i.e., stepchildren).

All requests will consider the applicant’s previous immigration history, criminal history, the results of background checks, national security, and public safety vetting, and any other relevant information available to or requested by the U.S. Citizenship and Immigration Services.

Employers may stand to benefit from a substantial new group of individuals who will be work authorized and whose statuses could be legalized in the U.S. if this program proceeds.

DACA Recipients and Undocumented College Students

The administration subsequently announced that it is also taking additional steps to facilitate the process for DACA recipients to obtain work visas. DACA was created in 2012 by President Barack Obama as a means for immigrant youth who met certain eligibility requirements to qualify for work authorizations and obtain “deferred action.” While DACA protection has enabled hundreds of thousands of individuals to legally work and live in the U.S., the program has faced considerable uncertainty since 2017, when the Trump administration initially sought to terminate the program but was prevented from doing so in the federal courts.

The program continues to face legal challenges, and additional litigation before the U.S. Supreme Court is very likely. Fundamentally, DACA is not a legal status – the reliance on “deferred action” simply reflects DHS’ decision not to bring immigration removal proceedings against a specific individual. While many DACA recipients and their employers have since sought to transition to a work visa or other legal status that Congress specifically established in the Immigration and Nationality Act (INA), the process for doing so is uncertain, expensive and cumbersome. Since DACA recipients either entered without authorization or were out of status when they received DACA protection, they are typically ineligible for a transition to a lawful status within the U.S.

Instead, they are required under immigration law to “consular process” outside the U.S. and obtain a work visa at a U.S. consulate. The individual’s departure from the U.S. could trigger removal bars (similar to those described above), requiring the individual to obtain a temporary waiver of inadmissibility from the government. These waivers, known as “d3 waivers” based on the section of the INA to which they relate, can take months to obtain and the outcome of such a waiver is not certain. These cumulative issues have chilled the interest of many employers and DACA recipients in pursuing these waivers.

In the coming weeks, the administration is expected to announce additional steps to streamline the availability of d3 waivers. The U.S. Department of State will announce changes to its process for granting such waivers to DACA recipients through updates to the Foreign Affairs Manual, and DHS has indicated that it will adopt the State Department’s policy changes. These steps, if implemented, are very good news for many employers and the DACA recipients that they employ by providing a more efficient, robust and reliable process for transitioning DACA recipients to a more stable and lawful status in the U.S.

© 2024 BARNES & THORNBURG LLP
For more on the DACA Provisions, visit the NLR Immigration section.

Executive Action: Obama’s Legacy and 2016 Predictions (Part 2 of 2)

As promised in our previous post, today we conclude our predictions on President Obama’s 2016 executive activity.  While we believe the President’s final executive orders will target immigration and perhaps even corporate political expenditures, we predict executive agency action will cover a broad range of pressing labor and employment issues.  With federal legislative gridlock expected to continue through 2016, employers should prepare themselves for a barrage of agency activity, especially from the Equal Employment Opportunity Commission (“EEOC”), National Labor Relations Board (“NLRB”), and Department of Labor (“DOL”).  Our summary is below.

Expected Agency Activity of 2016

Based on the 2015 Supreme Court decisions in Young v. UPS and EEOC v. Abercrombie & Fitch Stores, Inc. and the EEOC’s interest in systematic discrimination in the workplace, we predict the EEOC will focus heavily on companies’ policies regarding pregnancy and religious discrimination and accommodation in 2016.  As a refresher, in Young the Court held a genuine factual dispute existed as to whether UPS provided more favorable treatment to at least some employees whose situation “cannot reasonably be distinguished” from Ms. Young’s —e.g., workers unable to lift up to 70 pounds due to reasons other than pregnancy limitations such as a workplace injury or a recognized disability.  In Abercrombie (blogged about here) the Court concluded an employer violates Title VII by rejecting an applicant in order to avoid making a religious accommodation, even if the employer only has an “unsubstantiated suspicion” that the applicant may eventually request an accommodation.

Along with discrimination/accommodation policies, we predict the EEOC and NLRB will focus on company-wide social media policies in 2016. While the NLRB has been hounding employers on social media policies since 2010, the EEOC did not really begin gathering information on the issue until 2014.   We believe 2016 will be the year the EEOC begins targeting employers’ social media policies to evidence discrimination.  We also predict the EEOC’s focus on gender identity discrimination and the NLRB’s focus on FLSA class action settlements will continue with full force into 2016.

With the DOL’s Final Rule on overtime exemption updates expected to roll out this year, we predict the agency will focus on wage-hour reform and that employers will be expected to get into compliance sooner rather than later. Although Solicitor of Labor Patricia Smith stated in November 2015 that final guidelines will not likely be issued until “late 2016,” we believe the DOL will push them out before November’s presidential election.  Employers should expect the Final Rule to increase the minimum salary exemption requirement from $455/week to $970/week.  We would not be surprised if the DOL also finalizes revisions to the duties test, which is a factor along with salary level used to determine whether an employee qualifies under a white collar exemption to minimum wage and overtime rules.

Although the 2016 federal legislation horizon looks bleak, President Obama and his executive agencies are poised for a busy final year. Stay tuned for further developments.

Article By Kristine M. Woliver of Squire Patton Boggs (US) LLP
© Copyright 2015 Squire Patton Boggs (US) LLP

White House Will Unveil Cyber Executive Actions At A Summit This Week

Squire Patton Boggs (US) LLP law firm

Legislative Activity

This Week’s Hearings:

  • Wednesday, February 11: The Senate Commerce, Science and Transportation Committee will hold a hearing titled “The Connected World: Examining the Internet of Things.”

  • Thursday, February 12: The House Homeland Security Subcommittee on Cybersecurity, Infrastructure Protection and Security Technologies will host a hearing titled “Emerging Threats and Technologies to Protect the Homeland.”

  • Thursday, February 12: The House Education and the Workforce Subcommittee on Early Childhood, Elementary and Secondary Education will hold a hearing titled “How Emerging Technology Affects Student Privacy.”

  • Thursday, February 12: The House Science, Space and Technology Subcommittee on Research and Technology and Subcommittee on Oversight will hold a joint hearing titled “Can Americans Trust the Privacy and Security of their Information on HealthCare.gov?”

Regulatory Activity

White House Will Unveil Cyber Executive Actions at a Summit this Week

On Friday, February 13, the White House will hold its Summit on Cybersecurity and Consumer Protection at Stanford University. President Obama will be speaking at the Summit and plans to issue a new Executive Order focusing on ways to increase cybersecurity information sharing between the private sector and the U.S. Department of Homeland Security (DHS).

The executive action will likely expand the current work that DHS’s National Cybersecurity and Communications Integration Center (NCCIC) does to include a new concept of Information Sharing and Analysis Organizations (ISAO), which was briefly previewed by the President last month. As currently discussed, ISAOs would be designed to share information across multiple industry sectors to supplement the work of the current network of Information Sharing and Analysis Centers (ISACs).  According to press reports from government officials, the executive action is expected to create a network of ISAOs that would be managed by DHS in the beginning and eventually would become a privately-run entity. Several government officials and industry representatives have said that the President’s action will represent a step forward to improving the current information sharing platforms but they also recognize that information sharing legislation is still needed.

In addition to the Summit on Friday, the National Institute of Standards and Technology (NIST) will hold a half-day workshop on Thursday focused on the technical aspects of consumer security. The Office of Science and Technology Policy will also host a meeting leading up to the Summit on Thursday focused on cybersecurity workforce development.

White House Blog Highlights Future Action on Cyber Risk Management

Last week, White House Cybersecurity Coordinator Michael Daniel wrote a blog post on how companies can strengthen their cyber risk management and the role of the federal government in incentivizing stronger cybersecurity practices in the private sector. He notes in the post that the White House believes “the market offers the most effective incentives for the private sector to adopt strong cybersecurity practices,” but also stated that the Obama Administration will continue to work in a variety of areas to support these efforts by streamlining regulations, investing in cybersecurity research and development, and updating federal procurement policies and practice. Daniel wrote that the White House is working with federal agencies and critical infrastructure to identify regulations that are excessively burdensome, conflicting, or ineffective and will release a report on the findings no later than February 2016. Additionally, the White House plans to release a report this spring on the key priorities for cybersecurity research and development over the next three to five years.

The blog post also noted that the White House will not pursue public recognition as a means of incentivizing the private sector to adopt cybersecurity best practices or the NIST Cybersecurity Framework given that this could take away from the voluntary nature of the Framework. While Daniel did not mention liability protection as an incentive for greater information sharing in the blog post, it is still a possible incentive that the White House would support given that it was also included in the information sharing legislative proposal that the President released last month.

ARTICLE BY

Amy F. Davenport
Norma M. Krayem
OF
Squire Patton Boggs (US) LLP

Law Professors’ Letter Advocate that Executive Authority to Extend Deportation Deferrals

Jackson Lewis Law firm

On December 3, 2014, NBC News reportedly obtained a November 3 letter written by Shoba Sivaprasad Wadhia, Stephen Legomsky, Hiroshi Motomura, and Michael Olivas – four distinguished immigration law professors. The professors did not take a position on who should be included in the President’s executive action, but instead advocate that the President is not limited in using prosecutorial discretion to individuals whose dependents are lawfully present in the United States. The professors further encourage the Administration to consider the “broad prosecutorial discretion grounded in the Constitution and other laws of the United States.”

Interestingly, this letter preceded the President’s announcement and advocates a broader use of prosecutorial discretion than the Department of Justice’s Office of Legal Counsel. As discussed in another blog post, 17 states are suing the Administration over immigration executive actions.

Obama’s executive action is of major significance to businesses because it includes development of heretofore unavailable mechanisms for certain individuals to gain lawful employment status as well as addressing issues related to individuals in the US in H-1B and H-4 status, such as work authorization for dependent spouses. The potential   for up to 5 million individuals gaining lawful work status has broad implications for employers who may discover that existing workers are undocumented or have questions about employing workers with temporary work permission.  Employers are cautioned however that implementing regulations may not be issued for several months, so taking a wait and see attitude rather than initiating discussions with their workforce may be the most prudent course at this time.

ARTICLE BY

Nicola Ai Ling Prall
OF
Jackson Lewis P.C.