President Obama’s November 20 executive order shielding almost half of the nation’s 11 million illegal immigrants from deportation poses unique challenges for both Congress and employers.

What to Expect on Capitol Hill—

In explaining his decision to grant temporary legal status and work permits to up to 5 million immigrants the President blamed congressional Republicans for failing to pass immigration reform legislation. For their part, leading Republicans seem determined to undo the executive order, arguing presidents lack the authority to change law unilaterally.  

Human Resources Legislation

INTELLIGENCE FOR HCM PROFESSIONALS

Stay Informed About Changing Compliance Regulations & Workforce Trends
Read the HR Legislation Blog to stay on top of complex HR & Payroll policy issues

Immigration Executive Order: Challenge for Congress and for Employers

Fri Dec 5, 2014

President Obama’s November 20 executive order shielding almost half of the nation’s 11 million illegal immigrants from deportation poses unique challenges for both Congress and employers.

What to Expect on Capitol Hill—

In explaining his decision to grant temporary legal status and work permits to up to 5 million immigrants the President blamed congressional Republicans for failing to pass immigration reform legislation. For their part, leading Republicans seem determined to undo the executive order, arguing presidents lack the authority to change law unilaterally.

It should be noted that for the first time in Mr. Obama’s presidency Republicans, having gained 9 Senate seats in the November elections, will have a majority in both the Senate and House of Representatives next year.

Nevertheless, Congress’s ability to reverse the President’s immigration order is limited. The right of the minority in the Senate to filibuster legislation means that Republicans need 60 votes to pass legislation revoking the executive order. Republicans will have at most 55 Senate seats in 2015.  And President Obama can veto such legislation should it reach his desk.

Another avenue for Congress might be to use “the power of the purse” to deny funding for the U.S. Citizenship and Immigration Service, the agency implementing the new program. Here again President Obama could veto such measures, setting up a confrontation with Congress and precipitating a government shutdown—a no-win result for which Republicans could be blamed.

The best option appears to be for Congress to pass immigration reform legislation in 2015. In fact, congressional Republicans are contemplating a piecemeal approach, passing a series of separate immigration bills one-by-one. The list might include strengthening border security, expanding high-tech visas, creating a guest worker program in agriculture and enforcing visa overstays. But each House-passed bill would require 60 votes in the Senate and 67 votes to override a presidential veto.

At the end of the day Congress is unlikely to reverse the President’s executive order. Indeed, apart from largely symbolic votes to express opposition to what the President has done, it will be difficult for immigration reform legislation to become law next year.

The Challenge to Employers—

Washington’s immigration policy stalemate may pose an even bigger challenge for employers—for three reasons:

First, the U.S. Chamber of Commerce, the Business Roundtable and other employer groups are on record supporting comprehensive immigration reform legislation. They worry now that the President’s executive order has derailed bipartisan legislation to fix the nation’s immigration regulatory system.

Second, the President’s action will create an entirely new category of 4-5 million temporarily eligible immigrant workers—let’s call them “Blue Card” holders. While subsequent regulations will clarify work eligibility rules, the existing I-9 and E-Verify processes will require substantial modification, further complicating an already burdensome compliance process.

Finally, employers could get caught up in a new policy battle over immigration. Enforcement agencies rightly will want to shut down the jobs magnet that has attracted illegal immigrants, lest the President’s order encourage more illegal migration. Congress could decide to “crack down” on employers and mandate E-Verify, creating more compliance uncertainty for employers.

Based on what we’ve seen so far Washington DC will be the epicenter of a new debate over the President’s immigration executive order. Regrettably, employers could bear the brunt of the fallout from both the executive order and the congressional response to it.