What's new in immigration? A few thoughts for 2016.

• Author: Gladstone, Michael

This article originally appeared in the April 2016 Employment Law Committee newsletter.

1. What is the status of the President's immigration programs, and how do they affect employers?

   IN late November, 2014, President Obama announced several major initiatives intended to fix a number of problems with the current immigration system and promote a more predictable system going forward. The most publicized of the initiatives--deferral of removal of illegal parents of United States citizen children--became the target of lawsuits to prevent implementation. The significance of this measure, should it ultimately become effective, obliges employers to keep abreast of the status of this initiative, as well as other related measures. Several of the significant measures are addressed here.

   1. Deferred authorization for spouses of H-1B visa holders

      H-1B is a common work visa. Dependent spouses and children hold H-4 status, but are not allowed to work. As of May 26, 2015, H-4 spouses (but not H-4 children) may apply for and receive work authorization. Work will be authorized where either (1) the H-1B principal has an approved Immigrant Petition (I-140) or (2) the H-1B principal has received an H1B extension based on a permanent labor certification application or an I-140 petition already pending for at least one year. This is a significant change from past practice and brings the H-1B visa into line with other oft-used employment based visas by adding H-4 spouses to the group eligible to obtain work authorization. Employers who alert their H-1B employees to this opportunity will generate great good will.

   2. Deferred Action for Child Arrivals ("DACA")

      DACA was created to stem the removal of undocumented individuals below a certain age brought here as children who effectively grew up in the United States. It does not create a 'lawful status' for the participants but instead, provides immediate relief from the fear of deportation and allows for work authorization. The DACA program, first implemented in 2012, was to be expanded by the elimination of the upper age limit (birth date cut off of June 15, 1981 eliminated) and by shortening the required continuous U.S. residence period from June 15, 2007, to January 1, 2010. Additionally, work authorization would be issued for three years, instead of two years. It was anticipated that applications under the new rules would be accepted sometime in February 2015. The expansion of this program, however, was enjoined in the same proceeding which halted implementation of the Deferred Action for Parental Accountability, discussed next. If eventually implemented, employers should know of this initiative since by expanding DACA's coverage it could affect employee's children.

   3. Deferred Action for Parental Accountability ("DAPA")

      This brand new program, which mimics DACA, was created to benefit the parents of U.S. citizens or Lawful Permanent Residents (green card holders), where the parent is in the U.S. illegally. It is intended to address the...