Obama’s Immigration Executive Actions: What It Will Mean For Employers Roger Y. Tsai Holland & Hart LLP Colorado SHRM Annual Conference October 2015 Keystone, CO

Overview June 2012 – President Obama granted two-year work permits for undocumented young adults November 20, 2014 – President Obama announced an expansion of the deferred action program February 17, 2015 – Federal Court injunction of DACA – Which workers will this affect? – Affect on employers who sponsor workers? – When will it go into effect?

Existing DACA Program Deferred Action For Childhood Arrivals– Granted 2-year work permit if: – were under the age of 31 as of June 15, 2012 – came to U.S. before reaching your 16 th birthday – have continuously resided in the U.S. since June 15, 2007 – had no lawful status on June 15, 2012 – are currently in school, have graduated from high school or obtained GED, or honorably discharged from military – have not been convicted of a felony, significant misdemeanor, or three or more misdemeanors

Results of DACA Over 500k young people have received work permits – 70% have been able to start a new job – 45% have been able to earn higher wages – 50% have been able to open their first bank account – 55% have been able to obtain a driver’s license – 20% have enrolled in health insurance

Changes for DACA Program Extends the deferred action period and employment authorization to 3 years from 2 years Removes age cap Residence requirement – continuously in U.S. since 1/1/10 (instead of 6/15/07)

Must have entered U.S. before age of 16 Must meet all other DACA guidelines Applies to initial or renewal DACA USCIS set to accept requests 2/18/15 Blocked by federal judge

New Deferred Action for Parental Accountability (DAPA) Program Allows parents to request deferred action and employment authorization Must have lived in U.S. continuously since 1/1/10 Must have had a son or daughter (of any age) who is a U.S. citizen or lawful permanent resident as of 11/20/14

Must pass background check Must pay taxes USCIS had expected to begin accepting requests in mid-to-late May 2015

Employment Authorization for Certain H-4 Spouses H-4 dependent spouses of H-1B nonimmigrants who: – are the principal beneficiaries of an approved Form I- 140, Immigrant Petition for Alien Worker; or – have been granted H-1B status beyond six years based on a PERM labor certification or I-140 petition pending for at least 365 days under the American Competitiveness in the Twenty-first Century Act of 2000

H-4 dependent spouses of H-1B nonimmigrants who: – are the principal beneficiaries of an approved Form I-140, Immigrant Petition for Alien Worker; or – have been granted H-1B status beyond six years based on a PERM labor certification or I-140 petition pending for at least 365 days under the American Competitiveness in the Twenty-first Century Act of 2000 Effective May 26, 2015 Expectations: – First year: 179,600 – Each subsequent year: 55,000

Optional Practical Training (OPT): seeks to expand: fields of study eligible for STEM extensions; length of OPT time for STEM graduates; and strengthen relationships between schools and students during the OPT period to ensure OPT furthers students’ course of study Awaiting proposed changes by DHS

L-1B “Specialized Knowledge” DHS to clarify definition of “specialized knowledge” required for L-1Bs who transfer from a company’s foreign office to its U.S. office Should resolve issue of inconsistent adjudications

Other Immigration Reforms Modernize the PERM program – Explore charging fees – Update recruitment regulations to real world recruitment – Eliminate harmless error as a basis for denial Modernize, improve and clarify visa programs Authorize parole to eligible inventors, researchers and founders of start-up companies who may not yet qualify for a national interest waiver Promote naturalization process Shift resources to border crossings Streamline immigration court process

Possible Effects of Exec Actions Could affect between million unauthorized immigrants living in the U.S. Possible business and economic effects of these reforms is disputed – better recruitment an detention of highly skilled H-1B workers – help level the playing field – stabilize federal debt – raise/lower wages? – increase tax revenues

Inbound Undocumented Migration

Green Cards (Permanent Residency)

Deportations

Removing the Magnet of Jobs Preventing the knowing employment of undocumented workers – I-9 form (conducting an audit) Document fraud M-274 Guide to the I-9 – Encouraging E-Verify use Federal and State Contractors U.S. Supreme Court case

E-Verify States Source: LawLogix

State Immigration Reform Restricting In-State Tuition Driver’s Licenses Public Benefits Local Police into Immigration Agents Allows state to investigate employers Harboring/transporting provisions Creation of state based visa process Requiring Use of E-Verify

ICE Activity FY 2008FY 2009FY 2010FY 2011FY 2012FY 2013 I-9 Audits Criminal Arrests Penaltie s $675k$1 M$5.3 M$10.5 M$6 M$15.8 M

Immigration Update ICE conducted 3,000+ inspections; issued 637 final fine notices for more than $15.8M Oct. 2013, ICE issued largest I-9 penalty ever – Infosys Ltd. agreed to pay $34M due to substantive errors in more than 80% of its I-9 forms

Immigration Reform Creating a Path to Citizenship for Unauthorized Immigrants Already Here Once the Border is Secure Commission on border governors and AGs determine when border secure Undocumented applicants may not receive green card until all current applicants approved (1.7 million) Creates temporary lawful prospective immigrant (LPI) status to work (Obama) Allows LPI to transition to green card eight years after enactment (Obama) LPIs seeking green card are exempt from numerical limitations (Obama)

Immigration Reform Improving our Legal Immigration System and Attracting the World’s Best and Brightest Foreign students graduating with advanced degrees would be provided green card. Shifting green cards from family to employment. Stronger Employment Verification - through “non-forgeable electronic means.” Good faith defense if employer using new document verification system (Obama). New E-Verify system would become mandatory in phases (Obama). Exploring use of biometric SS cards (Obama). Admitting New Workers under expanded guest worker program.

Overview of Immigration Courts 57 immigration courts 231 immigration judges Removal hearings, asylum petitions, bond redeterminations for noncitizens in detention, reviews of “credible fear” and “reasonable fear” determinations Appeal to Board of Immigration Appeals (BIA) Appeal BIA decisions to federal circuit courts

What This Means for Federal Courts? Immigration courts complete more than 280,000 proceeding each year – an average of 1,243 for each immigration judge Board of Immigration Appeals hears 30,000+ appeals each year 10,000+ appeals from BIA decisions filed in federal circuit courts (2008) Circuits with largest immigration dockets: Second and Ninth – 35-40% of entire caseload

Challenges for Federal Courts: Scope of jurisdiction Lack of representation – more than ½ of respondents in removal proceedings unrepresented – 84% of detained respondents unrepresented Perceived unfairness toward noncitizens as tribunals are under Dept of Justice

Thank You! Questions? Roger Y. Tsai Holland & Hart LLP