Here’s why small business owners need to pay close attention to the President’s recent immigration announcement

For many U.S. businesses, the immigration laws are difficult to understand, seem unduly punitive, inflexible, and can even pose a threat to business operations. With estimates running to about 11 million undocumented persons currently living in the U.S., the fact is that many small and mid-sized businesses often discover that they have hired undocumented persons, some of whom have even risen to critical, key positions.

For employers of skilled foreign labor, and investors, on the other hand, standards governing certain work visas have been subject to restricted interpretations by the immigration service, which has created a relatively high level of unpredictability; work authorization for spouses has been restricted; green card categories for skilled immigration have become so seriously backlogged that many highly skilled foreign nationals are being forced to wait many years for legal permanent residency.

For these reasons, businesses should pay close attention to President Obama’s historic, recent announcement (made November 20, 2014) that his administration is planning to initiate a series of reforms to the immigration system. Some of the planned reforms touched on by the Administration’s announcement that could impact upon employers are summarized below:

DAPA May be an Answer to the Legalization Challenges Confronted by Many Employers

The administration announced its intention on creating a deferred action program, called Deferred Action for Parents of U.S. Citizens and Lawful Permanent Residents (DAPA), that would apply to undocumented persons who are parents of U.S. citizens or lawful permanent residents. Among the criteria so far described is that to be qualified one would need to be (i) a parent of a U.S. citizen or permanent resident, who was born on or before November 20, 2014, and (ii) the parent has been in continuous residence in the U.S. since January 1, 2010.

While the deferred action program is not an amnesty program, because it does not create a path to permanent residency, it would nevertheless defer deportation and allow qualified persons to obtain work authorization, which could be critical to many employers’ seeking a way of legalizing key undocumented personnel and so reducing the risk of becoming subject to prosecution by regulators.

Efforts to Alleviate Severe Visa Backlogs

The President also announced that his Administration would also discuss with the U.S. Department of State, which allocates visas as prescribed by worldwide and country visa quotas, about ways of making the green card processing of skilled immigrants more efficient. Among the issues taken up by the Administration will be reforming the allocation systems so that it is more responsive to market conditions, so that the extent of visa backlogs can be reduced.

The President also noted that efforts would be made to increase the ability of skilled foreign nationals to move from job to job and to alleviate current restrictions on “natural career progression.” In separate announcements, the U.S. Department of Labor also indicated that it would be reviewing the increasingly complicated labor certification system, with the view to updating recruitment requirements and introducing harmless error guidelines.