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All in a Day's Work® - Insights on Labor & Employment Law

President Obama’s Executive Orders on immigration – interagency cooperation and DOL initiatives

On November 20, 2014, President Obama announced a series of executive actions designed to reduce the strain on the country’s immigration system. Many of these policies will have a direct effect on employers and the business community and demonstrate that the increased interagency cooperation and enforcement we have seen in recent years will continue.

The President has ordered the creation of an interagency working group consisting of U.S. Department of Labor (DOL), U.S. Department of Homeland Security (DHS), U.S. Department of Justice (DOJ), U.S. Equal Employment Opportunity Commission (EEOC) and the National Labor Relations Board (NLRB) to identify policies and procedures to promote the consistent enforcement of labor, employment and immigration laws. Two of the topics the working group will review include 1) promoting worker cooperation with enforcement authorities without fear of retaliation based on immigration status, and 2) ensuring that employers do not use federal agencies to undermine worker protection laws by introducing immigration authorities into labor disputes. DOL’s interagency working group fact sheet is available here. This interagency group appears to be ready to continue the DOL-DHS discussions that began with the signing in March 2011 of a Memorandum of Understanding (which has since been revised) between those two agencies governing their coordination with respect to their various civil enforcement activities and avoidance of conflicts.

DOL has also proposed to review the permanent labor certification program (PERM), which is used to certify a shortage of U.S. workers who are able, willing and qualified to fill certain positions. This certification is a necessary prerequisite for many employment-based legal permanent residence processes. For example, DOL has reported that employers filed more than 70,000 PERM applications seeking to certify shortages of U.S. workers for specific positions in fiscal year 2014. Among other key changes, DOL will attempt to modernize the PERM program so that it can identify worker shortages more effectively. This part of the President’s directives will hopefully have a positive impact on employers trying to fill positions for which the pool of qualified applicants is limited. DOL’s PERM fact sheet is available here.

Other initiatives flowing from the President’s announcement but whose details are not yet known include improved allocation of immigrant (legal permanent resident) visas; increased portability of work authorization without jeopardizing a pending legal permanent resident process; expanded work authorization for students, recent graduates and the spouses of certain professional-level workers; and efforts to increase the number of investors eligible to enter the country.

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