Last night, President Obama announced that he will issue a sweeping Executive Order to address some aspects of the U.S. immigration system, which he referred to as “broken.”  Speaking in broad terms, the President said that his Executive Order would:

1. increase resources to secure the border and carry out deportations
2. provide highly skilled immigrants the ability to stay in the US and contribute
3. prioritize deportation for criminals
4. provide millions of undocumented immigrants with temporary “deferred action” relief from deportation and the ability to work legally in the U.S.

Despite the extensive anticipation and media coverage of this announcement, much of the details of the Executive Order remain unknown to the public.  We expect the following list of questions to be addressed in the coming days and weeks.

Which undocumented immigrants are eligible for temporary relief?

The President referred specifically to undocumented immigrants who are the parents of U.S. citizens or Lawful Permanent Residents and have lived in the U.S. for at least five years.  Individuals would have to register with the authorities, undergo a criminal background check and pay their taxes.  Exactly what types of crimes would render someone ineligible and what is meant by paying taxes was left unclear.  In addition, beyond parents of U.S. citizens and permanent residents, under the Executive Order, the existing Deferred Action for Childhood Arrivals (DACA) program for immigrants who came to the U.S. as children and grew up in the U.S. would be expanded to include a larger group. 

How will the President help retain highly skilled talent?

We wait to learn what specific changes will be put into place to address the limited ability of the current visa system to attract skilled workers and retain many of the foreign students who come to study at U.S. universities. The President does not have the ability to add a visa category without legislation from Congress, but he can seek to further utilize a currently existing visa category. On the same day as the President’s announcement, the Secretary of Homeland Security issued a memorandum directing U.S. Citizenship and Immigration Services and Immigration and Customs Enforcement to review, expand and improve a number of classifications that affect employers, including the Optional Practical Training program, the National Interest Waiver and the L-1B category for specialized knowledge.  The resulting changes and proposals remain to be seen.

How will the Executive Order affect U.S. Employers?

An influx of newly “legal” workers into the workforce will likely provide employers with a pool of additional candidates for employment.  In addition, industries that have traditionally relied on undocumented workers to fill unskilled labor positions may now have an opportunity to come into compliance with the law without losing their workforce.  Will the Administration, in tandem, step-up worksite enforcement with a renewed sense that employers now have “no excuse” to hire unauthorized employees?

On the skilled labor front, an expansion in the scope and utilization of employment-related visa categories would certainly benefit employers seeking to hire talented foreign nationals.

Who, What, Where, and When?

It will clearly take time to put new application processes into effect, but how much time?  Once effective, will undocumented immigrants be able to apply for deferred action and employment authorization in one application? What types of evidence and supporting documentation will be required?  Will the application be made in-person, by mail or online?

What will happen, long term, to people who get “temporary” relief?

The President was careful to describe the relief from deportation as “temporary”.  While the President may have no intention of ever deporting these people, will individuals hesitate to register for the relief for fear of identifying themselves to a government that may change its policies and deport them in the future?