On December 3, 2014, NBC News reportedly obtained a November 3 letter written by Shoba Sivaprasad Wadhia, Stephen Legomsky, Hiroshi Motomura, and Michael Olivas – four distinguished immigration law professors. The professors did not take a position on who should be included in the President’s executive action, but instead advocate that the President is not limited in using prosecutorial discretion to individuals whose dependents are lawfully present in the United States. The professors further encourage the Administration to consider the “broad prosecutorial discretion grounded in the Constitution and other laws of the United States.”
Interestingly, this letter preceded the President’s announcement and advocates a broader use of prosecutorial discretion than the Department of Justice’s Office of Legal Counsel. As discussed in another blog post, 17 states are suing the Administration over immigration executive actions.
Obama’s executive action is of major significance to businesses because it includes development of heretofore unavailable mechanisms for certain individuals to gain lawful employment status as well as addressing issues related to individuals in the US in H-1B and H-4 status, such as work authorization for dependent spouses. The potential for up to 5 million individuals gaining lawful work status has broad implications for employers who may discover that existing workers are undocumented or have questions about employing workers with temporary work permission. Employers are cautioned however that implementing regulations may not be issued for several months, so taking a wait and see attitude rather than initiating discussions with their workforce may be the most prudent course at this time.